wife from him and the determination of the amount of her alimony cannot be regarded as otherwise than grossly excessive. Nothing but a formal trial was contemplated, for the ground of annulment was mutually understood to be sufficient. There had never been any contest, save as to alimony, and this contest had been fully adjusted before the settlement between plaintiff and defendants. The contract for compensation was illegal, and the only right which defendants had was to be 658 paid the reasonable value of their services. When the settlement was made the decree had not yet been entered, and the defendants were in possession of the instrument controlling the allowance of alimony, so far as such allowance could be controlled by mutual agreement of the parties. Certainly such a settlement was not made between persons dealing at arm's-length, but was, on the other hand, between attorney and client in the very business with reference to which the employment had arisen, which business had not yet been completed. The view suggested by one of defendants in his testimony, that defendants' services were "worth just what [plaintiff] thought it was worth to get a separation from his wife," cannot be approved. The client, no matter how ignorant or unduly exercised he may be, may properly look to his attorney to furnish him the judgment and discretion which he lacks.

That plaintiff had by letter dismissed the defendants from the case and employed another attorney is of no significance, for the reason that the relation of client and attorney between plaintiff and defendants had been resumed by mutual consent before the case came on for disposal, and the other attorney was by consent of the defendants simply brought in to assist in protecting plaintiff's interests as against his wife. There is no evidence that the other attorney was representing plaintiff in any controversy with the defendants in relation to the payment of their fees.

The trial court should have sustained plaintiff's motion, and required the return by defendants to plaintiff of the amount asked, as having been paid in excess of a reasonable compensation.

The judgment of the trial court is therefore reversed.

The Validity of Contracts Between Attorney and Clients is discussed in the note to Shirk v. Neible, 83 Am. St. Rep. 159; and champerty and maintenance are discussed in the note to Thallhimer v. Brinckerhoff, 15 Am. Dec. 317. That an attorney contracting for a contingent fee has the burden to prove that the contract is fair to his client, see Lynde v. Lynde, 64 N. J. Eq. 736, 97 Am. St. Rep. 692. It has been held that any agreement conditioned on the obtainment of a

divorce, or intended or calculated to facilitate the same is void; and that an agreement to prosecute an action for divorce and to pay witness fees in a stated sum is champer tous and void: Barngrover v. Pettigrew, 128 Iowa, 533, 111 Am. St. Rep. 206.

Attorneys are not Entitled to Any Pay for Their Services, Where they have been guilty of actual fraud or bad faith toward their clients in the matter of their employment: Davis v. Swedish-American Nat. Bank, 78 Minn. 408, 79 Am. St. Rep. 400.

The Right to Recover Payments Voluntarily Made is discussed in the note to New Orleans etc. Co. v. Louisiana etc. Co., 94 Am. St. Rep. 408.

CASES

IN THE

SUPREME COURT

OF

MAINE.

YOUNG v. HILLIER.

[103 Me. 17, 67 Atl. 571.]

WILLS-Life Estate Power to Sell.-If a husband by will devises and bequeaths all his estate, both real and personal, for the use of his wife during her life, "whatever remains of said' estates" at the death of his wife to his daughter, he creates a power of sale of both the real and personal property, which, being exercised by the wife, devests the title of the remainderman. (pp. 284, 285.)

C. A. Bailey and T. D. Bailey, for the plaintiff.

P. H. Gillin, for the defendant.

19 SAVAGE, J. This is a real action which involved a construction of the will of Nathan P. Marston. The particular clauses which are in question are these:

"Item. I give, devise and bequeath to my wife, Elizabeth A. Marston, all my estate both real and personal wherever found and however situate for her use during life.

"Item. At the death of my said wife Elizabeth, whatever may remain of said estates, I give, devise and bequeath to my daughter Elizabeth A. Young.

Elizabeth A. Marston is now deceased, and the plaintiff, who is the Elizabeth A. Young named in the second devise, claims title as remainderman. The defendant claims title under Elizabeth A. Marston, who in her lifetime mortgaged the demanded premises to Mary F. Blethen. The mortgage was foreclosed, and subsequently the premises were conveyed by the mortgagee to the defendant, Mrs. Marston joining in

the deed,

as a grantor.

There can be no question but that the first clause of the will, above quoted, standing alone, created a life estate in the widow, and only a life estate. It follows that the only question at issue is whether by the terms of the will, properly in

terpreted, a power of disposal was annexed to the devise for life. If so, the estate demanded now belongs to the defendant. If not, it belongs to the plaintiff.

It is contended by the defendant that from the use of the words "whatever may remain of said estates" in the devise of the remainder to the plaintiff, it is to be implied that the testator intended to give to the life tenant more than the mere use of the estate real and personal; that he intended, in fact, to give her a power of disposal both of the real and the personal estate.

To give effect to the intention of the testator, provided it is consistent with the rules of law, lies at the foundation of every judicial construction of a will. The questions always are, what was the intention of the testator, and can it be given effect without 20 violating legal principles. It is the intention as expressed that must control: Cotton v. Smithwick, 66 Me. 360. The language must be construed according to settled canons of interpretation (Ramsdell v. Ramsdell, 21 Me. 288), even though it may defeat the probable intention: Pickering v. Langdon, 22 Me. 413. But a will, if ambiguous, is to be read and construed in the light of such existing conditions as may properly be supposed to have been in the mind of the testator, such as the situation and relationship of his beneficiaries, and the situation and amount of the estate Smith v. Bell, 6 Pet. 68, 8 L. ed. 322; Follweiler's Appeal, 102 Pa. 581.

After making provision for his wife, then sixty-seven years old, by creating a life estate in real and personal property for her use, this testator devised "whatever may remain of said estates," at the death of the wife, to his daughter. It is generally conceded that by the use of such an expression in the devise of a remainder after a life estate is expressly created, or by the use of the expression "if any remains," or by the use of any words of similar import, a power of sale is annexed to the devise of the life estate by implication. This rule has been many times affirmed in this state: Ramsdell v. Ramsdell, 21 Me. 288; Shaw v. Hussey, 41 Me. 495; Warren v. Webb, 68 Me. 133; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; McGuire v. Gallagher, 99 Me. 334, 59 Atl. 445. So in Massachusetts Harris v. Knapp, 21 Pick. 412; Johnson v. Battelle, 125 Mass. 453. Some courts have held that when a life estate in both real and personal property has been created, a devise of "whatever remains," or the use of words of similar import, annexes to the life estate, by implication, a power of sale of the personal property only. In Foote v.

Sanders, 72 Mo. 616, for instance, a case cited by the plaintiff here, such was held to be the rule. But the court in that case said that the contrary doctrine was favored by the cases in Maine and Massachusetts, and expressed the opinion that the "extreme views" held in these two states were met and answered by Smith v. Bell, 6 Pet. 68, 8 L. ed. 322, and Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 23 L. ed. 927. In this connection it is worth while to notice that our own court, speaking by Chief Justice Peters in Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311, characterized Smith v. Bell, 6 Pet. 68, 8 L. ed. 322, as “a case differing 21 somewhat from many of the authorities," and declined to follow it.

But whatever may be the rule in other states, we regard it as well settled in this state that such an implication raised from the general expression "whatever may remain" may apply to real estate as well as to personal estate, when the life estate consists of both, and will so apply, if such appears to have been the intention of the testator: Ramsdell v. Ramsdell, 21 Me. 288, and other cases cited supra. So that, if such an intention appears in this will, it can be enforced.

It

And we think it clear that such was the testator's intention. He was providing for an aged wife-surely in greater need of care than the daughter. He gave her, by implication, the power to sell some of the estate at least. Was that power intended to be limited to the personal estate? is hardly credible that it was. The personal estate only amounted to one hundred and eighty-six dollars and twentyfive cents. The real estate from which she could receive only the income or use unless she could sell it, amounted to only eight hundred dollars. If such be the construction of the will, but scant provision was made for the wife, and the bulk of the estate, small though it was, went to the daughter in the end. But we are not left to conjecture. The testator having created a life estate in real estate and a life estate in personal estate, in the wife, devised "whatever may remain of said estates," both of them. It was not whatever should remain of his estate in general, but whatever should remain of the real estate and of the personal estate. The word "esstates," in the plural, naturally has this significance, and we think it expressed the real intention of the testator. By saying that only so much of the real estate as might "remain" at the death of the wife should pass to the daughter, he expressed his purpose that the use given to the wife should extend to a sale of it, if she wished or needed. Otherwise there