Pratt v. Stewart. of the proceeds. Held not to be the intent to vest the real estate in the legatee, and that the power to sell it passed to the administrator with the will annexed. The sale of property, whether for the purpose of paying debts and charges, or of carrying into effect the provisions of a will, is a matter which pertains to ordinary administration. ASSUMPSIT to recover the proceeds of the sale of certain real estate, made by the defendants as administrators, with the will annexed, of the estate of Shadrack Smith; brought to the Superior Court. Demurrer to the declaration, and reservation for advice. The case is sufficiently stated in the opinion. J. B. Curtis, in support of the demurrer. S. Fessenden, contra. CARPENTER, J. Shadrack Smith, by will, gave to his daughter Mrs. Pratt, one of the plaintiffs, the one quarter interest in certain real estate in Stamford, and directed his executor to sell the same in one year after his decease and divide the avails, so that his said daughter should receive one fourth thereof. After his death the will was duly proved and approved. The executor declined the trust, and the defendant, Amanda C. Stewart, then the widow of the deceased, was appointed administratrix with the will annexed, which trust she accepted and was duly qualified. She sold a portion of the property, and there was due to Mrs. Pratt of her portion of the avails on the 20th day of October, 1877, the sum of $694.96. These facts are stated in the declaration, and the plaintiffs claim to recover the sum named with interest. There was a general demurrer to the declaration, and the questions of law arising thereon were reserved for the advice of this court. The record presents this question-was the administratrix authorized to sell the real estate as directed by the will? The statute (Gen. Statutes, p. 371, sec. 12,) authorizes the court of probate to appoint an administrator with the Pratt v. Stewart. will annexed whenever the executor refuses to accept the trust or to give a bond. This statute must be construed as conferring upon the administrator so appointed the ordinary powers for the purpose of settling and disposing of the estate which the executor would have had if he had accepted the trust. But if the will confers upon him powers or charges him with duties not essential to the settlement of the estate, and which are founded in personal confidence, such powers and duties will not ordinarily be transmitted to the administrator. The ordinary provisions of a will directing the custody, control and management of the estate during the settlement, and its final distribution among the objects of the testator's bounty, fall within the former class and may be executed by an administrator. But when the will expressly constitutes the executor a trustee for some special purpose, or vests in him a discretionary power in reference to some matter outside of the ordinary powers and duties of an executor or administrator, or charges him with some duty indicating a special confidence reposed in him-in such cases the duty imposed or power conferred will not as a general rule be transmitted to the administrator. We will now examine the provisions of this will, so far as the declaration discloses them, for the purpose of ascertaining where the power to sell falls. Before doing so, however, we would remark that all the provisions of a will should be executed by the administrator with the will annexed unless a contrary intention clearly appears. The testator gave to his daughter one fourth part of certain real estate and then directed the executor to sell the real estate and to pay over to her one fourth of the proceeds. Taken together these two provisions indicate, not an intention to vest the real estate in his daughter in fee, but to give her a pecuniary legacy. They in effect direct the executor to sell the real estate and to pay to the daughter one fourth of the proceeds. It does not differ in principle from those cases, which are not unusual, in which the testator directs all his estate to be sold and converted into money. The sale of property, whether for the purpose of paying 49 342 f72 242 Heath v. Bates. debts and charges or for the purpose of carrying into effect the provisions in a will, is a matter which pertains to ordinary administration. Primâ facie therefore the sale was properly made by the administratrix, and there is nothing in the case to suggest a different conclusion; for the executor is not constituted a trustee, there is no discretionary power, the direction to sell being absolute, and there is no special confidence reposed in him. From the terms of the will it is apparent that the testator intended that the land should be sold without reference to the person selling it. Hence any person authorized by law to administer on the estate may lawfully sell, yea more, it is his duty to do so, for in no other way can the intention of the testator be carried into effect. The direction to sell in one year can not affect the result. The allegation is "that under and pursuant to the provisions of said will and to the directions thereof the defendants sold," &c. Under this allegation, if time is material, we may presume that the property was sold in one year. We advise the Superior Court to overrule the demurrer. In this opinion the other judges concurred. ALFRED A. HEATH vs. AARON J. BATES. An attorney-at-law, who places a writ in the hands of an officer for service, is personally responsible to the officer for his fees, unless he expressly informs him at the time that he will not be so responsible, or there are circumstances which make it clear that that was the understanding of the parties. CIVIL ACTION for the recovery of fees due the plaintiff as an officer for the service of writs placed in his hands for service by the defendant, an attorney-at-law; brought originally before a justice of the peace, and by the defendant appealed to the Court of Common Pleas, and in that court Heath v. Bates. tried to the jury before Hall, J. Verdict for the plaintiff and motion for a new trial by the defendant. The case is sufficiently stated in the opinion. A. H. Averill, in support of the motion, contended that in the absence of a general custom, and where the principal is disclosed, as was the case here by the names of the parties appearing on the writs, an attorney is not liable to an officer for his fees for the service of writs placed in his hands by the attorney unless he has expressly agreed to be so liable; citing Eastman v. Coos Bank, 1 N. Hamp., 23; Towle v. Hatch, 43 id., 272; Judson v. Gray, 11 N. York, 408; Bonynge v. Field, 81 id., 159; Welsh v. Goodwin, 123 Mass., 71; Adams v. Whittlesey, 3 Conn., 566; Ogden v. Raymond, 22 id., 379; Hewitt v. Wheeler, id., 557; Story on Agency, $135. L. D. Brewster and H. Scott, contra, cited Weeks on Attorneys, 232, 234; Adams v. Hopkins, 5 Johns., 252; Ousterhout v. Day, 9 id., 114; Trustees of Watertown v. Cowan, 5 Paige, 510; Judson v. Gray, 11 N. York, 408; Campbell v. Cothran, 56 N. York, 279; Tarbell v. Dickinson, 3 Cush., 346; Merriman v. Newman, 20 Weekly Reporter, 369; Scrace v. Whittington, 2 Barn. & Cress., 11; Foster v. Blakelock, 5 id., 328; Walbank v. Quarterman, 3 Com. Bench, 94; Brewer v. Jones, 10 Exch., 655. PARK, C. J. The plaintiff, a deputy sheriff, sued the defendant, an attorney at law, for fees due him for the service of writs placed in his hands for service by the defendant. The plaintiff claimed that the placing of the writs in his hands for service, constituting a request that he should serve them, raised an implied contract on the part of the defendant to pay his fees for the service. The defendant claimed that in such a case there was no implied agreement to pay the fees, but that, as he was an attorney, acting for his clients, and they were known to the plaintiff, the clients only were liable to the plaintiff, unless he him Heath v. Bates. self expressly agreed to pay the fees. The parties were at issue upon some questions of fact, but the points of law claimed by each were as here stated. The court charged the jury that an attorney might make himself personally liable for the fees of an officer, by either an express or implied contract, where such was his intention; that if he failed to disavow a personal liability at the time, the fact that he was contracting for his principal and not for himself might be gathered from the circumstances; that the burden of proving the implied contract rested on the plaintiff; and that the court would not say what facts or circumstances would constitute sufficient evidence of the implied contract, but that it was a question for the jury whether the contract was as claimed by the plaintiff or as claimed by the defendant. The jury returned a verdict for the plaintiff for the full amount of the fees charged. The defendant has no reason to complain of these instructions. If they err at all it is in his favor. Under them the jury must have found that he intended to make himself personally liable. An actual intent to do so was not necessary. Such an intent might be inferred from his conduct. While in one sense the client is the principal and the attorney the agent, and while the attorney is professionally and constantly acting for clients, whose names from the records of the courts and other means of publicity are almost always known or may be so, yet there are peculiarities in his case which make it necessary to apply to it with some qualification the general principles of agency. In most cases of agency the principal is what the name imports the leading person in the transaction. The agent is, as the term implies, a mere subordinate, important only as the representative of the principal; often representing only one principal. An attorney at law, on the other hand, occupies a position of recognized importance in itself, not infrequently of great prominence before the public, in which he often has a large number of clients, his relations to whom are full of detail, and who are little noticed by the public. In these circumstances, if every officer who serves |