Kirchoff v. Bernstein

HARRIS, J. 1-3. The rules which define the duties of an attorney when dealing with his client are well established. The relation between an attorney and client has always been treated as one of special trust and confidence; and for that reason the law requires that the conduct , of an attorney, when dealing with his client, shall be characterized by fairness, honesty and good faith. Indeed, so strict is the injunction not to take advantage of the client, that when a client challenges the fairness of a contract made with his attorney the latter has the burden of showing not only that he used no undue influence, but also that he gave to his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been if the latter had dealt with a stranger. The attorney, however, has a right to contract with his client for his compensation, and while courts will closely scrutinize a contract which a client claims to have been brought about by fraud or by undue advantage nevertheless, a contract between an attorney and client will be upheld when it appears to be fair and honest. Stated in broad terms, the client ordinarily is not entitled to relief from an agreement concerning compensation to be paid to his attorney unless he has suffered injury through an abuse of confidence on the part of the attorney: Hamilton v. Holmes, 48 Or. 453, 459 (87 Pac. 154); Phipps v. Willis, 53 Or. 190, 194 (96 Pac. 866, 99 Pac. 935, 18 Ann. Cas. 119); 6 C. J. 686. It must be remembered, however, that the value of services performed by an attorney cannot always be measured with the same decree of exactitude as can a bushel of wheat or a ton of coal. Education, experience, skill, judgment and knowledge are impor — 388 — tant factors. Nor can a just appraisal be placed upon the worth of professional services if the time actually employed in the rendition of those services is taken as the sole gauge. An experienced and trained attorney might accomplish in a very short time what another could not do in a much longer time, or perchance might not be able to do at all. The responsibility involved is always a considerable item and ordinarily the greater the amount involved the greater the responsibility. Attention will now be directed to the evidence for the purpose of determining whether the conduct of the defendants measured up to or fell short of the high standard fixed for attorneys when dealing with their clients. Letters written by the defendants and by Samuel Kunkel and by others form a large part of the record, and it will, of course, be impracticable to recite more than occasional excerpts from such correspondence or to record more than some of the most important facts disclosed by the testimony of witnesses. The fee paid to Frank C. Hesse and the Christmas present given to the defendants may first be eliminated from the discussion. On August 5,' 1914, the defendants wrote a lengthy letter to Samuel Kunkel, informing him that Anna Kunkel had commenced a proceeding to contest the will. This letter advised Samuel Kunkel that the defendants had “retained the professional service” of Frank C. Hesse, an attorney and a German scholar, “who should on account of his complete knowledge of the German language, be of great service to you.” The letter explains that Mr. Hesse “was born at Leipzig, studied at Leipzig, Hallee in Paris, and because of correspondence between you — 389 — and yonr brother would be drawn in question, his services as interpreter and expert will be indispensable, likewise would his services as attorney be of great assistance.” Under date of August 28th, Samuel Kunkel replied, saying: “Regarding the lawsuit. It is very'good that you took Mr. Hesse to yonr assistance”; and, again, on September 15th Samuel Kunkel wrote the defendants saying: “I also approve of the employment of Mr. Hesse whom you took as an assistant.” On November 19th the defendants wrote to Samuel Kunkel, advising him that “for Mr. Hesse’s services I disbursed the sum of $1,000, for which I hold receipt.” Samuel Kunkel acknowledged receipt of the letter which the defendants had written on November 19th, and while he made no specific mention of the disbursement to Hesse he must be deemed to have approved it for the reason that he stated: “With your balance I am completely agreed and satisfied.” On November 26th, Samuel Kunkel addressed to the defendants a letter which contains the following: “Regarding the cash money. I am very much tormented by the children, and therefore request you after deduction of the advance and charges of every nature, and after you have deducted for yourself the further sum of $1,000 for a Christmas present, to send in the same manner as the $1,000 draft heretofore remitted to me, everything.” The propriety of the employment of Mr. Hesse cannot be seriously questioned, especially in view of the fact that Samuel Kunkel was fully informed concerning the reasons for the employment and, with full knowledge of all the facts, approved not only the payment of a fee but also the amount actually paid. Moreover, in his first letter to the defendants under — 390 — date of February 5, 1914, Samuel Kunkel requested them to “correspond in German, as I have difficulty to understand the English language.” The money which was paid to Hesse was paid for services which he himself performed and not for services rendered by the defendants and hence the money paid to' Hesse ^should not be taken into account or charged against the defendants when ascertaining how much they were entitled to ask for their services. The Christmas present was a voluntary gift. Samuel Kunkel knew what he was doing when he gave the defendants this Christmas present and there is no adequate reason suggested in the record for compelling* the defendants to return the gift. The amount of this gift must be left out of the calculation when figuring the compensation which the defendants were entitled to ask for their services. If the Christmas present, either in whole or in part, is taken into consideration when calculating the amount which the defendants were reasonably entitled to charge for their services then to the extent that the Christmas present is so taken into consideration it ceases to be a gift, and from a Christmas present is transformed into compensation. 4. The fee which the County Court allowed for services rendered to the executors by the defendants was not an unreasonable allowance. That T. J. Cleeton, the judge to whom the final account was submitted, was'temperamentally cautious and possibly overcareful when passing* upon claims for attorneys’ fees is evidenced by his testimony which reads as follows: “I think at least 70 per cent of the fees that I allowed were probably reduced from what the attorney asked for. ’ ’ Besides his experience as a practitioner Judge Cleeton had had several years of experience on the — 391 — bench. The following is an excerpt from his testimony: “Ordinarily an estate of that size that proceeded without contest and in the usual way, the attorney’s fees should be something like about twenty-five hundred dollars, from twenty-five hundred to three thousand dollars, and I estimated that to represent and provide a defense against a contest of an estate of that value it would be worth from five hundred to one thousand dollars, and I fixed the fee accordingly at thirty-five hundred dollars, which I thought was a reasonable fee.” Lionel E. Webster, who was a distinguished lawyer and had served on the bench for about fifteen years, including seven years as county judge of Multnomah County, gave it as his opinion that $3,500 or $4,000 would have been a reasonable allowance. W. M. Cake, who served as county judge of Multnomah County from 1898 to 1902 and who acted as an attorney for Anna Kunkel in the proceeding to contest the will, stated that $2,000 would have been a reasonable allowance if there had been no contest, and that if the services rendered to the executors in connection with the contest are also taken into account, $3,500 would be a reasonable fee. The compensation allowed by the probate court was not disproportionate to the compensation allowed in another large estate referred to in the record; and upon the whole the fee which was fixed for the services performed for the executors by the defendants was a moderate and reasonable sum. The only question now remaining for consideration is whether the defendants were entitled to collect any fee at all from Samuel Kunkel, and, if they were, then whether the sum retained by them was excessive. Besides the allegations relating to the contest, it will be — 392 — recalled that the complaint avers that the defendants planned to charge and collect excessive fees and to take advantage of Samuel Kunkel by procuring a power of attorney from him, advising him not 'to communicate with the American consul in Germany, concealing the amount of the estate, representing that the German consulate in Oregon was trying, to get the business in order to make for itself fees, failing to furnish copies of the accounts filed by the executors during the administration of the estate, responding to inquiries for definite facts with general and indefinite statements, failing to communicate to Samuel Kunkel the fact that the defendants had received $3,500 from the executors and taking advantage of the condition of Samuel Kunkel by cajoling and flattering him. The defendants performed services for the executors; and they also performed services for Samuel Kunkel. The County Court possessed authority to allow the executors to pay the defendants for services rendered to the executors; but that tribunal was without power to allow the executors to pay the defendants for services rendered to Samuel Kunkel as an individual. The County Court exercised its conceded authority and made an allowance for services rendered to the executors; but that court did not pretend to allow.the defendants compensation for services rendered to Samuel Kunkel as an individual. The allowance made by the County Court was for services rendered to the executors and to them only. The County Court considered only the services performed for the executors. The County Court had no jurisdiction over the private business of Samuel Kunkel. Moreover, the County Court neither exceeded nor attempted to exceed its jurisdiction; for when passing upon the final account of the executors’the court con — 393 — sidered only the value of the services performed by the defendants for the executors. The court neither knew nor inquired as to what services the defendants performed for Samuel Kunkel or as to the value of those services. The allowance made by the County Court was a reasonable allowance for services rendered to the executors; and since such an allowance could not have lawfully included and in fact did not include compensation for services rendered to Samuel Kunkel as an individual, we shall now confine our attention to a consideration of the fee which the defendants charged Samuel Kunkel. The letter of January 17th was written by the defendants in compliance with the request which Daniel Kunkel had made on December 2, 1912, when he executed the will. The will was placed in a safety deposit box and neither of the defendants had seen the instrument since the date of its execution. When the defendants wrote this letter they were without assurance that they would be retained as attorneys for the executors; and while they probably hoped to be employed yet there was some reason for them to think that the executors would seek other attorneys, for the defendants had previously opposed one of the executors in litigation in which he had been interested. In the letter of January 17th the defendants advised Samuel Kunkel to cause the American consul “to put his acknowledgment” on the power of attornéy. On February 5th Samuel Kunkel wrote saying: “I have communicated with the American consul and hope shortly to be able to send you the power of attorney. ’ ’ And on February 23d the defendants acknowledged receipt of Samuel Kunkel’s letter of February 2d, and, among other things, said: — 394 — “In. our opinion you acted very judiciously in communicating' with the American consul, inasmuch as his official attestations of legal documents are entitled to full faith and credit in all American courts and by all American officials. “In our opinion it would not be wise for the best of your own interests to inform the American consul of the exact amount of your expected inheritance, since he will charge you a fee, which is based on a certain percentage of your inheritance. The larger the inheritance the larger his fee. Outside of a few, official attestations, he cannot do anything for you in the matter and would charge you just the same a certain fixed percentage for his mediation. Your inheritance you will receive without his intervention, and for that reason it is useless to pay him a fee for nothing.” It may be that the defendants were misinformed as to' the fees charged by the American consul. The defendants knew, however, that the German consulate in Oregon made a percentage charge on moneys collected and sent to Germany; and there is nothing to show that the defendants knew or believed that the fees charged by the American consul in Germany were other than as represented in their letter. Assuming that the fees charged by the American consul were in proportion to the amount of the inheritance then the advice given by the defendants was to the best interests of Samuel Kunkel. In their letter of January 17th the defendants told Samuel Kunkel that Daniel Kunkel had requested them to advise Samuel Kunkel that he “would receive a substantial share of” Daniel’s property; and in their letter of February 23d the defendants wrote as follows: “In our opinion, your share ought to be worth about 200,000 marks.” — 395 — While Samuel Kunkel’s share of the estate amounted to more than 200,000 marks, yet it is apparent that the defendants were not attempting to do more than to give a conservative estimate, because they neither knew nor had any means of knowing at that time the exact amount of the claims which might be presented against the estate. Indeed, the attorneys for the German consulate, when called upon at some time prior to June to advise the consulate concerning the condition of the estate, were properly prudent and careful when they stated: “There is a possibility that the estate will have to pay debts which are not known to us at the present.” It cannot, however, be seriously contended that Samuel Kunkel was deceived or misled as to the affairs of the estate or as to the value of the property. On February 21st Cake & Cake, as attorneys for Anna Kunkel, wrote to Samuel Kunkel and in their letter they informed him that the real estate was valued at “substantially $29,000,” and that the personal property, consisting of notes, cash and stock, “was valued at substantially $75,000.” Ida Kunkel, who resided in Germany and was the widow of a deceased nephew of Daniel Kunkel, wrote to the German consulate, and on April 11th Samuel Kunkel also wrote to the German consulate, inquiring about the condition of the estate of Daniel Kunkel; and Samuel Kunkel afterwards learned from the German consulate the exact condition of the estate as it appeared from the inventory and appraisement. On March 3d, the defendants sent to Samuel Kunkel copies of the will, one in German and one in English. On April 28th, the defendants wrote a letter to Samuel Kunkel explaining to him that they had fixed 200,000 marks as “a conservative estimate of your share of the in — 396 — heritance.” And again on July 2d the defendants wrote to Samuel Kunkel telling him that the value of the estate was $98,886.08 and that— “you must deduct the costs of the administration of the estate as well as the inheritance taxes, yearly taxes, etc., etc., which sums are not yet known to us. Nevertheless, we believe that you may count with safety on your share amounting to at least two hundred thousand marks. For further explanations on this point we refer you to our former letters.” Samuel Kunkel knew the terms of the will; he knew what the estate consisted of; he knew the appraised value of the property owned by the estate; and consequently he was not and could not have been deceived either, as to the property comprising the estate, or as to its value, or as to the worth of his share. On June 15th Samuel Kunkel wrote to the defendants and with his communication he inclosed a copy of a letter which the attorneys for the German consulate had written to the consulate and which the latter had forwarded in response to inquiries previously made by Ida Kunkel and Samuel Kunkel. The letter received by Samuel Kunkel from the German consulate referred to the defendants and concluded thus: “We do not consider it advisable for foreign heirs to intrust the representation of their interests to the same attorneys who are representing the executors,! and with whom an accounting must be made, and who' most probably are representing conflicting interests.” The communication of June 15th was acknowledged by the defendants on July 2d and in their letter they stated in substance, that Samuel Kunkel would be obliged to pay fees if his interests were placed in the hands of the German consulate and that the consulate was apparently interested in securing the busi — 397 — ness on account of the fees which it would be entitled to charge. "While not the slightest criticism can be placed upon the letter which Samuel Kunkel received through the German consulate, yet it is evident that the defendants treated the letter as an attempt to cause Samuel Kunkel to withdraw his business from the defendants; and viewing the letter in that light, they accordingly wrote to Samuel Kunkel on July 2d, as already explained. It may appropriately be said hére that it is admitted by all the parties that fees would have been charged if the interests of Samuel Kunkel had been turned over to the German consulate. 5. As soon as the will was opened and its contents made known Anna Kunkel indicated her dissatisfaction with the terms of the instrument. She promptly consulted her attorneys, Cake & Cake, who wrote to Samuel Kunkel on February 21st and made it plain to him that he could expect the will to be contested by Anna Kunkel. On March 14th, Samuel Kunkel wrote to the defendants and inclosed a copy of the communication received by him from Cake & Cake. Samuel Kunkel was about 78 years old; his wife was sick; and apparently he was in need of funds because in one of his letters he speaks of himself as a pensioned teacher and complains because his government had not paid his pension. In this letter of March 14th Samuel Kunkel writes to the defendants thus: “If in truth there can result a long and expensive litigation, which I prefer to avoid, it would be better to bring about a fair compromise, if the same is advantageous to me and if I do not lose much thereby, and I entreat you to have the goodness to exert yourself in my behalf with this end in mind. Inasmuch as I am two and a half years older than my deceased brother Daniel, there is a probability of my never living long enough to see the end of such a lawsuit. — 398 — Therefore, much depends upon putting me in the possession of my share as soon as possible. I assume that you have mailed already a copy of the last will, though I have not received the same as yet. Have the goodness to inform me of current developments and please take care that the matter is brought to a conclusion as rapid as possible, for I do. not live in such easy financial circumstances as my deceased brother Daniel, and would like to enjoy at least a few of my old days.” Under date of March 30th, the defendants acknowledged receipt of Samuel Kunkel’s communication of March 14th and in this letter the defendants tell Samuel that in their opinion “Mrs. Kunkel has not the slightest ground to overthrow the last will and testament of your deceased brother”; and “though we have not the least doubt regarding a favorable ending of such a lawsuit, we must, on the other hand, admit that we cannot prevent Mrs. Kunkel from instituting such a contest. Furthermore, although you empower us in your Power of Attorney to compromise your interests if necessary, we would under no circumstances enter in such a compromise should we not be. empowered to that effect by you expressly.” On April 21st the defendants wrote to Samuel Kunkel as follows: “Should you prefer.not to listen to a compromise, but to insist upon your full rights, we shall act in accordance with your wishes in the matter. Should you, however, prefer to pay Mrs. Kunkel a certain amount in a compromise, in order to get the matter out of the way, and in. order to put you in possession of your share of inheritance quicker, please give us an approximate idea of the maximum amount, or if you intrust the matter entirely to our judgment, please advise us forthwith of your intention and we shall then do for you whatever is within our power. If you were not so advanced in years, we would posi — 399 — tively advise you not to listen to a compromise, but under the existing circumstances a sensible and not too expensive compromise would probably be tbe best for you; but we leave the matter entirely to you and shall act entirely according to your wishes.” On May 8th Samuel Kunkel thanks the defendants for information regarding “the incontestability of the testament.” On August 5th the defendants advised Samuel Kunkel that negotiations for a compromise “are still under way” and that the defendants were of the opinion that a compromise could be effected whereby Anna Kunkel would receive the real property and Samuel Kunkel would receive “all moneys remaining after payment of debts and claims against the estate, which ought to be approximately $25,000, as well as the mortgage for $27,500, which as good as cash.” On August 17th the defendants wrote to Samuel Kunkel that they were “as positive as we can possibly be that a settlement as outlined, to you before [referring to the letter of August 5th] can be brought about”; and they closed their letter with a suggestion that he telegraph his answer. On August 28th Samuel Kunkel wrote to the defendants in reply to their letter of August 5th, saying: “Since I was in full accord with your advice regarding the offer of compromise, I sent forthwith to the telegraph office. Unfortunately my telegram was on account of the war not accepted.” Again in this letter Samuel Kunkel says: “I express the hope that you may succeed to settle my affairs successfully.” Not having heard from Samuel Kunkel the defendants on September 4th sent to him a copy of the an — 400 — swer to the contest filed by them in his behalf 'as well as for the executors; and in this letter the defendants advised and indeed urged the acceptance of the compromise; but as appears from the excerpt taken from Samuel Kunkel’s letter of August 28th, he had already forwarded his acceptance although it had not yet reached the defendants when they wrote their letter of September 4th. On September 15th Samuel Kunkel wrote to the defendants in answer to their letter of August 17th, saying: “No answer thereto iá> really necessary, since I can only repeat to-day what I wrote you already in my letter of August 31, [August 28th] that I accept the submitted compromise.” The contest, which Anna Kunkel began, was genuine. Anna Kunkel had lived with Daniel Kunkel for 25 years and had helped him to accumulate his fortune. There were no children. Daniel Kunkel and his wife together with a niece of the former made a trip to Germany in 1911 and visited Samuel Kunkel and other relatives. Anna Kunkel felt that during that trip she was “slighted” by her husband’s relatives. Daniel Kunkel used intoxicants to excess. Shortly after returning to Portland, Daniel Kunkel expressed to Alexander Bernstein a desire to make another will and after some delay the instrument of December 2, 1914, Was executed. All the wills which the testator had made prior to that time gave at least some of the personal property to Anna Kunkel. The will of December 2d, in reality, only gave her one tenth of the whole estate while the remainder went to the aged brother who had no unusual ■ claims upon Daniel’s bounty. Although the defendants, as attorneys for Samuel Kunkel, appeared to be confident of success in the event the contest against the will had been prosecuted — 401 — to the end and the attorneys for Anna Kunkel likewise seemed to have been very much encouraged over the prospects of finally breaking the will, yet it is not at all unlikely that by the time the compromise was made the attorneys for each litigant were just a little doubtful of the possible outcome of protracted litigation over the will. The defendants made it plain to Samuel Kunkel, it is true, that the litigation would be long-drawn out and they also suggested to him several contingencies, some of which might or might not have happened. Although the defendants caused a monthly allowance to be made for the widow, nevertheless they tried, but without success, to have the court cut off the allowance when Anna Kunkel commenced the contest against the will. The testimony of W. M. Cake is quite convincing that the contest was begun and maintained as a real lawsuit. Judge Cake vouched for the loyalty of the defendants to the cause of their client, when he testified that “Mr. Bernstein and Mr. Cohen got me down to the very lowest we would have possibly considered a settlement.” Samuel Kunkel was at all times desirous of compromising, because he was old and wished to enjoy his “inheritance” before he died. The compromise enabled him to realize his desire. The defendants appéar to have been earnest and faithful in their efforts to obtain the most that they possibly could for their client, Samuel Kunkel. 6. Samuel Kunkel was never deceived about the defendants being attorneys for the executors.' As early as February 23d the defendants wrote to Samuel Kunkel, telling him: “Messrs. Peter Wagner and Edward Schiller are named in the testament as the executors, on account of their intimate, and long-standing friendship with — 402 — your deceased brother. Same have appointed us as* their attorneys, and as a consequence we have been recognized as such by the County Court.”'. On April 20th Samuel Kunkel wrote to the defendants offering to sell to them his share of the estate for $50,000. On April 28th Samuel Kunkel was told that ' “all debts of the deceased, as well as inheritance tax, state taxes, funeral costs, fees of the executors and attorneys’ fees, costs of the monument, etc., must be paid”; and that “the fees of the executors and of their attorneys are determined by the court.” On May 7th the defendants acknowledged receipt of Samuel Kunkel’s letter of April 20th, and said .to him: “Tour offer to sell your share in the estate for $50,000 to us we have to decline with thanks. Since we deem it our duty to, realize out of the estate as much for you as possible, and our position of trust prohibits us to make a personal profit on you, excepting attorneys’ fees, which we are allowed by the County Court for the probating of the estate, and such fees which we shall charge you in establishing your share of inheritance and cashing the same.” The letter received from the German consul by Samuel Kunkel and referred to by him in his letter of July 2d to the defendants, advised him that the defendants were attorneys for the executors. In their letter of August 5th the defendants say to Samuel Kunkel: 1 • ‘ ‘ The executors lost no .time to file the first report as required by law after the expiration of the six months’ period, and the same shows expenditures in the amount of $3,357.93 for funeral expenses, doctor bills, etc., as well as unpaid ciarais in the amount of $1,950, payment of which the court ordered. This last amount does not include inheritance tax, state taxes, executors’ fees, neither fees to be allowed to the at — 403 — torneys of the executors for administration of the estate. Besides this the court authorized a $500 monument.” On November 19th the defendants addressed a lengthy letter to Samuel Kunkel advising him of the confirmation of the final account and that they had received $27,600 (less certain specified costs) in cash together with the note for $27,500 as his share of the estate. In this letter they also state that “for the professional services of Messrs. Bernstein & Cohen which have been rendered for you to date, I charge the sum of $3,500”; they refer to an inclosed draft fox $3,000 and then say that there was left in their possession “a balance of $20,089.02 at your disposal.” On December 14th Samuel Kunkel acknowledged receipt of the letter of November 19th and said: “With your balance I am completely agreed and satisfied.” Thus it is seen that Samuel Kunkel was repeatedly told that the defendants were attorneys for the executors. This information came to him several times from the defendants and once from the German consulate. - He was told also, in plain and understandable language, not only that the defendants would be paid a fee to be allowed by the. probate court for services rendered for the executors but also that he himself would be expected to pay the defendants “such fees which we shall charge you in establishing your share of inheritance and' cashing the same.” Samuel Kunkel was told three several times that the defendants were acting as attorneys for the' executors: Twice by the defendants and once by the German consulate. In their letter of February 23d, which was'the very next letter the defendants wrote after the one dated January 17th, they informed Samuel Kunkel that they had been selected as attorneys for the executors. On — 404 — May 7th the defendants again told Samuel Kunkel that they were acting as attorneys for the executors. In addition to the two letters received from the defendants, Samuel Kunkel received one from the German consulate telling him that the defendants were attorneys for the executors; and the fact of such employment was emphasized and written in large letters before the eyes of Samuel Kunkel when he was told through the consulate: “We do not consider it advisable for foreign heirs to intrust the representation of their interests to the same attorneys who are representing the executors.” Three different times the defendants advised Samuel Kunkel that they would be paid for services rendered by them to the executors: On April 28th, on May 7th and on August 5th. Samuel Kunkel was-advised in unmistakable language that the defendants would charge him a fee for services rendered to him and in this same letter, which was dated May 7th, the defendants told him that in addition to the fee which they would charge him they would be paid a fee for services performed for the executors and that the. latter fee would be fixed by the .County Court. The letter of May 7th tells Samuel Kunkel that the defendants .cannot “make a personal profit on you, excepting attorneys’ fees, which we are allowed by the County Court for the probating of the estate, and such fees which we shall charge you in establishing your share of inheritance and cashing the same.” In this letter of May 7th Samuel Kunkel was advised of two things: (1) That the defendants would be paid a fee to be fixed by the County Court for services rendered to the executors; and (2) that the defendants would charge Samuel Kunkel a fee, for they say “we shall charge you.” — 405 — It must be remembered tbat Samuel Kunkel was a teacher; be was not an ignorant or an uneducated man; be knew tbe meaning of words; and consequently since be was an educated man with a thorough understanding of tbe German language we must presume that be understood the meaning of tbe words found in tbe letters received by him. With tbe exception of the letter of January 17th, all tbe letters signed by tbe defendants were written in tbe German language and consequently we must assume tbat Samuel Kunkel understood the letters which told him in tbe plainest language tbat tbe defendants were attorneys for tbe executors and tbat they would be paid a fee to be fixed by tbe County Court for tbe services performed for tbe executors and that tbe defendants would also charge Samuel Kunkel a fee for services performed for him. To say tbat Samuel Kunkel did not know tbat tbe defendants were attorneys for the executors or tbat be did not know tbat tbe defendants were to be paid for services rendered by them for tbe executors or tbat he did not know tbat the defendants expected to charge him for services to be rendered for him individually is to say tbat Samuel Kunkel did not know tbe meaning of plain and unambiguous words. When tbe defendants made known to Samuel Kunkel tbe amount of their bill be bad been previously informed tbat tbe defendants were attorneys for tbe executors and that they would be paid for such services a fee to be allowed by the County Court; and Samuel Kunkel approved tbe bill, rendered by tbe defendants, with this knowledge and also with a knowledge of tbe property owned by tbe estate, tbe value of it, tbe amount of tbe moneys disbursed by tbe executors, and tbe net value of bis “inheritance.” He continued to correspond regularly with — 406 — the defendants np until the time of his death and in none of his letters, following his approval by the letter of November 19th, is there to be found the least suggestion or intimation of dissatisfaction; but upon the contrary Samuel Kunkel’s letters manifest his unreserved and complete approval of the fee which the defendants charged him. Some attorneys might- have sent to Samuel Kunkel complete copies of every paper filed in the estate, while other equally reputable attorneys might not have done so. Viewing the transactions in the retrospect and in the light of what has subsequently occurred, it can, of course, now be said that it would have been more prudent if complete copies of all papers had been prepared and mailed to Samuel Kunkel. 7. It is true that it was the duty of the executors to support the will and it is likewise true that it was to the interest of Samuel Kunkel that the will be sustained ; and hence in that particular there was a unity rather than a conflict of interest between the executors and Samuel Kunkel. The only possible conflict of interest that could have arisen was when the county judge fixed the attorneys’ fees for services rendered to the executors; but Samuel Kunkel knew that the defendants were to be paid a fee to be fixed by the court and Kunkel had a right to consent to it, as he did. Samuel Kunkel was a necessary party to a settlement of the contest: 40 Cyc. 1262. If the will stood he received nine tenths of all the property of the testator. If the will had been broken then he lost all. The executors could not without his consent make a settlement of the contest which would take from him his interest in the real property and transfer it to Anna Kunkel. His approval of the compromise was — 407 — necessary. In view of the fact that Samuel Kunkel was the only person who could be affected by a compromise, which decreased his share of the estate and correspondingly increased the portion of Anna Kunkel, it can readily be seen that thére was much room for the rendition of services which were peculiarly personal to Samuel Kunkel alone. The services rendered by the defendants were assuredly of value to Samuel Kunkel. Indeed, if he had turned his interests over to the German consulate he would have been required, and properly' so, to pay for the services performed for him in looking after his interests; and, furthermore, it appears from the evidence in the record that the fees which the consulate would have charged for its services and for the services of its attorneys probably would have aggregated about $3,900. In other words, in addition to whatever fees might have been paid out of the estate to the attorneys for the executors, Samuel Kunkel would. have been required to pay fees for services rendered for him individually if he had turned his business over to the German consulate. It cannot fairly be said that no valuable service was performed by the defendants for Samuel Kunkel individually. If thé measure which was used by the German consulate in like cases is adopted as the standard then the fee retained by the defendants can be said to be within the limits of that measure. Moreover, Samuel Kunkel approved the fee and never at any time questioned the propriety or the amount of it. The decree appealed from should be reversed and the suit dismissed without costs. Reversed and Dismissed.