MacKIE v. HOWLAND

MacKIE v. HOWLAND. Attorney and Client; Fees; Contracts; Estoppel; Power of Attorney, revocation of; Executors, contracts of. 1. In 1839 certain bonds or certificates of indebtedness were issued by the Republic of Venezuela to G-. G. H. and S. S. H., brothers, for merchandise and military supplies - furnished by them. Upon their death some years after-wards, one-half of the bonds were retained by the executor of the estate of G. G. H. and the other half distributed to those beneficially interested in the estate of S. S. II. In 1868 the executor and representatives of the two estates employed and gave a power of attorney to one MacK., at a stipulated compensation of one-third of the amount to be recovered, to collect the amount due on the bonds from Venezuela, authorizing him to represent them “ before any court, tribunal or commission whatever,” and he agreed to present the claim to “ the proper tribunal having cognizance of the same,” under a convention between the United States and Venezuela. MacK. presented the claim in the same year to the Caracas commission, created under a treaty to adjudicate such claims, and it was rejected. "With an associate, MacK. continued to prosecute the claim vigorously, endeavoring to procure a new treaty between the two countries and a new commission to consider the claim. In 1882, when their efforts seemed about to be successful, M. H., the administrator de bonis non of G. G. H., in response to an inquiry informed MacK. that he considered the power of attorney and contract of 1868 in “ full force and binding.” The parties interested in the estate of S. S. H. declined, however, at that time to give MacK. a similar assurance, and employed a kinsman, C. H. R., to act for them. MacK. apparently acquiesced in their action and agreed to co-operate with C. H. R. In 1889 a new commission was formed under a treaty between the United States and Venezuela and met in Washington. Just prior to the presentation of the claim to it, M. H. as administrator de bonis non, revoked the power of attorney given MacK. in 1868, and executed one to C. H. R. agreeing to pay the latter for his services a contingent fee of SO per cent., to be paid only in event the estate should not be held liable to MacK. The new commission awarded the claimants $392,829.06 and issued certificates for that amount to two trustees in trust for those concerned, “ as their interest may appear or he lawfully determined.’.’ Proceedings in equity were taken to determine the rights of the respective parties, and it was held,: а. That the contract of 1868 was not confined to the prosecution of the claim before the Caracas commission; б. That the recognition of that contract by the administrator ti. 5. n. of the estate of G. G. H. removed all doubt as to its continued subsistence, and was practically a renewal of it; O. That the acquiescence of MacK. in the refusal of the representatives of the estate of S. S. H., to recognize in 1882 the contract of 1868, and his agreement to co-operate with the attorney then employed by them, constituted a waiver of his (MaeK’s.) rights, and an estoppel against his assertion of them; d. That whether MacK. was entitled to a quantum meruit for services rendered the last mentioned estate prior to 1882 was a question which could not be determined in the proceedings before the court; e. That the revocation in 1889 of the power of attorney given MacK. in 1868 was ineffectual to evade liability for his services to the estate of G. G. H. under the contract under which he had been acting; and †, That the contract of 1868 was within the power of the executor of G. G. H. to make and was a reasonable one. 2. An executor charged with the duty of collecting the assets of his estate may enter into all reasonable contracts to effect such collection, and the probate court has no power to make a contract for him or to direct or authorize him to make any. Nos. 99 and 162. Submitted January 9, 1894. Decided June 6, 1894. HEARING on appeals from decrees of the Supreme Court of the District of Columbia, holding an equity term, in three suits brought to determine conflicting claims to certain certificates of indebtedness in the hands of trustees. In two of the suits the bills were dismissed in the court below, and in the other a decree was entered for the complainants. Reversed. The Court in its opinion stated the case as follows: The transaction out of which the controversy arose that is involved in these proceedings had its origin over sixty years ago in the political revolutions of South America. In the year 1829 two citizens of New York, Gardiner G. Howland and Samuel S. Howland, trading under the firm name of G. G. & S. S. Howland, having furnished merchandise and military supplies to the then existing republic of Colombia, received in payment therefor four hundred and six bonds or obligations of that republic, of the par value of five hundred pesos each. When, soon afterwards, the Republic of Colombia was dissolved, and the three States which had composed it became separate and independent, one, of them, the Republic of Venezuela, assumed the payment of the indebtedness of the Republic of Colombia to the Howlands; and subsequently in or about the year 1839, Venezuela delivered to the Howlands, in place of the obligations of Colombia, and in satisfaction of them, its own obligations to the amount of 366 bonds, of the par value of 500- pesos each— about $183,000 — payable to bearer, and bearing interest at the rate of five per centum per annum from the day of their date, September 15, 1839. They constituted part of what was known as the “Consolidable Debt” of Venezuela, to distinguish it from another liability to which was given the name of the “ Consolidated Debt.” Gardiner G. Howland died November 9, 1851, leaving a will upon which, soon afterwards, letters testamentary were issued by the Surrogate’s Court of the City of New York to the executors therein named, who were Samuel S. Howland, the surviving brother, William H. Aspinwall, who had been for many years a partner in the firm, which was then designated by the name of Howland and Aspinwall, and Rufus Leavitt. Upon the death soon' afterwards of Samuel S. Howland and Rufus Leavitt, William H. Aspinwall, who had always been the active manager, became the sole surviving executor of the estate of Gardiner G. Howland. Samuel S. Howland died February 9, 1853, leaving a will, in which he named as his executors William H. Aspinwall, John L. Aspinwall and Charles H. Russell, to whom letters testamentary thereon were issued by the same Surrogate’s Court. At the time of the death of Samuel S. Howland, the Venezuelan bonds were still held in common. They were then divided equally between the two estates — one-half, being the 183 bonds numbered from 139 to 321, going to the estate of Gardiner G. Howland, and the 'other half, being the 183 bonds numbered from 322 to 504, going to the representatives of Samuel S. Howland. On or about December 22, 1855, the latter half were partitioned among the distributees or legatees of Samuel S. Howland; but the other half, belonging to the estate of Gardiner G. Howland, continued to be held by William H. Aspinwall, as sole surviving executor, until his death on May 26, 1875, when Meredith Howland, son of Gardiner G. Howland, and one of the parties to these suits, was appointed administrator de bonis non of his father’^, estate, with the will annexed, his appointment emanating from the Surrogated Court of the City of New York; and as such administrator he became the legal' holder of the 183 Venezuelan bonds assigned to the estate of Gardiner G. Howland. All the bonds, however, although nominally divided and partitioned between the two estates and between the distributees of the estate of Samuel S. Howland, seem actually to have been kept together, and to have remained in the possession or under the control of William H. Aspin-wall, until the time of his death. Repeated efforts were made without success to procure from the Government of Venezuela payment of its indebtedness to the Howlands. First, in 1857, one John M. Foster, a correspondent of the firm in Venezuela, sought to enlist the good offices of the minister of the United States resident at Caracas. Next, on January 13, 1857, the holders of the bonds gave a power of attorney to Henry S. Sanford to act for them and to procure payment of the bonds. Nothing came of either effort, or of other efforts made afterwards. Then James S. MacKie, one of the parties to these proceedings, and who, it seems, had been officially connected with the Department of State, and had there acquired some acquaintance with this and other claims against the Gov-eminent of Venezuela, was solicited by William H. Aspin-wall, between whom and himself there existed friendly relations, to leave the State Department and to take charge of several matters of business in which he (Aspinwall) was interested. This was in 1864. Among the matters then or subsequently committed to MacKie by Aspinwall was this claim of the Howlands against Venezuela; and the arrangement between them took- the shape of a formal contract in 1866, when power was given to MacKie to prosecute the claim upon a contingent compensation to him for his services of one-third of the amount that might be recovered. Powers of attorney were executed to him and a separate contract was made for his compensation. The power of attorney from Aspinwall to MacKie was not executed directly by the former. Having occasion to go to Europe, he constituted his friend and kinsman, Frederick H. Wolcott, his attorney to prosecute the claim of the Howlands, as well as some individual claim which he had himself against the Republic of Venezuela, with full power to prosecute, collect, compromise or settle the claims in any manner which he thought proper, and also with the power of substituting other attorneys in his place. This was on October 1, 1866. On January 1, 1868, Wolcott substituted MacKie for himself, and vested in him the plenary powers which had been vested in himself and which her had been authorized so to transfer. A few weeks afterwards, on January 22, 1868, all the individual representatives of the estate of S. S. Howland executed and delivered to MacKie a similar power of attorney. The agreement for the conduct of the business and for MacKie’s compensation bears date on January 1, 1868, and was likewise signed by the representatives of the estate of S. S. Howland, as well as by W. H. Aspinwall, as executor and trustee of the estate of G. G. Howland (by Meredith Howland) and by Wm. H. Aspinwall in his individual right (by Lloyd Aspinwall, attorney). And all the papers seem to have been delivered to MacKie in the latter part of January, 1868. Thereupon all the bonds, boththos belonging to the estate of G. G. Howland and those belonging to the estate of S. S. Howland, were delivered to MacKie by the attorney of W. H. Aspinwall; and MacKie entered upon the prosecution of the claim. After some correspondence with the Department of State, he transmitted the claim, together with the bonds, through that department for presentation and submission to a joint commission then in session at Caracas, the capital of Venezuela, constituted under a treaty entered into between that republic and the United States at Caracas, on April 25, 1866, for the adjustment of claims of citizens of both countries. A memorial and argument, prepared by MacKie, were submitted at the same time. He employed one Murray, then the secretary of the legation of'the United States at Caracas, to appear for him before the commission on behalf of the claim. The commission dismissed the claim from consideration, without passing upon the merits and without prejudice to the rights of the claimants, on the ground, as stated by it, that the claim belonged to what was known as the “ Consolidated Debt,” and not the f< Consolidable Debt,” of Venezuela — although the treaty, which is to be found in 16 Stat., 713, does not seem to justify any such distinction or conclusion. The action of the commission in this and other matters was severely criticised, and the charge of corruption was freely made against the commissioners and seems ultimately to have been accepted by the Governments both of Venezuela and of the United States as fully justified. Consequently steps were taken to vacate its proceedings and to procure the appointment of a new commission. About October 1, 1868, after the adjournment of the commission, MacKie, after consultation with William H. Aspin-wall, and with his approval, lodged a formal.protest against its irregular action with the Secretary of State; and on the 14th of December, 1870, he caused the matter to be brought before the Congress of the United States by a letter addressed to the Chairman of the Committee of the Senate on Foreign Relations. For upwards of twelve years, or until March 3, 1883, this whole Venezuelan business was repeatedly before the Congress of the United States in both of its branches, and in different shapes and forms; and during all that time, MacKie and Woodruff, his co-defendant in this suit, who appeared for other claimants, zealously strove to procure a reversal of the action of the Caracas Commission. At last, on March 3, 1883, they procured the passage of a joint resolution of Congress requesting the President to reopen negotiations with the Government of Venezuela, with the view, as stated in the resolution, to the revival of the treaty of April 25, 1866, and the appointment of a new commission to sit at Washington, “ which commission shall be authorized to consider all the evidence presented before the former commission in respect to claims brought before it, together with such other and further evidence as the claimants may offer; and from the awards that may be made to claimants, any moneys heretofore paid by the Department of State, upon certificates issued by them respectively upon awards made by the former commission shall be deducted, and such certificates deemed cancelled; and the moneys now in the Department of State received from the Government of Venezuela on account of said awards, and all moneys that may hereafter be paid under said treaty, shall be distributed pro rata in payment of such awards as may be made by the commission to be appointed in accordance with this resolution.” 22 Stat., 643. In the meantime Mr. William H. Aspinwall, under whose supervision and with whose concurrence MacKie had constantly acted, had died in 1875; and immediately thereafter, on May 26, 1875, letters of administration de bonis non of the estate of G. G. Howland, with the will annexed, were issued from the Surrogate’s Court of the City of New York to the complainant in this cause, Meredith Howland, who yet remains as administrator of said estate. In December, 1875, the bonds which had been in 1868 placed by W. H. Aspinwall in the custody of MacKie, were delivered by the latter to Gen. Lloyd Aspinwall, the son and executor of W. H. Aspinwall, as MacKie states, for the purpose of safe keeping and with the assurance that they would be forthcoming whenever required. As already intimated, MacKie and Woodruff, each representing distinct and different claimants, had co-operated in the conduct of what we may call the Venezuela business before the Congress of the United States and the. Department of State; but there had been no contractual relations between them prior to the year 1882. Early in that year they entered into an arrangement with each other, whereby Woodruff agreed to aid MacKie in the further prosecution of the Howland claim, and in consideration of such service MacKie agreed to give Woodruff one-half of his stipulated compensation in accordance with his agreement with Mr. W. H. Aspinwall. In order, however, that there should be no question about his authority to prosecute the claim under the Aspinwall contract, he addressed a letter under date of February 1, 1882, to Meredith Howland, the administrator de bonis non of the estate of G. G. Howland, requesting to be advised in writing, what he (Meredith Howland) had already said verbally, that he (Howland) did not consider the agreement between MacKie and Wm. H. Aspinwall as having lapsed, except as to the interest of Charles H. Russell (one of the representatives of the S. S. Howland interest). To this Meredith Howland returned the following answer: “New York, February 2, ’82. “Dear Sir: I am in receipt of yours under date of the 1st inst., also copy of the agreement made Jan. 1, ’68, between you and the heirs of G. G. and S. S. Howland and Wm. H. Aspinwall as representing the heirs of G. G. Howland (in place of Wm. H. Aspinwall, executor and trustee). I consider the above-mentioned agreement in full force and binding. “ Very truly yours, (Signed) “ Meredith Howland. “To James S. MacKie, Esq., “ 194 Bdway, City.” “ Mr. Lloyd Aspinwall will answer for his father’s interest, and Mr. Charles H. Russell, 417 5th Ave., for the heirs of S. S. Howland, namely: Mrs. Hoppin, 17 W. 19th street,— Mrs. Hunt, 19 W. 35th street, — Mrs. Chauncey, 19 Wash’n Square, N., — Mrs. Van Rensselar — Joseph Howland, Fish-kill Landing, N. Y.” Indorsed across this letter, or written across the face of it was the following from Mr. Lloyd Aspinwall: “ I concur in Mr. Howland’s view of the matter, so far as any interest of the estate of William H. Aspinwall is concerned. (Signed) “ Lloyd Aspinwall.” About the same time Mr. MacKie addressed a letter to Mr. Charles H. Russell, who, as already stated, was one of the representatives of the S. S. Howland interest, of the same tenor as that addressed to Meredith Howland. Mr. Russell wrote in answer to say that his son, Mr. Charles H. Russell, Jr., would call upon him; and accordingly a few days afterwards, on February 7, 1882, Mr. Charles H. Russell, Jr., did call on MacKie. This was the first intervention of Mr. Charles H. Russell, Jr., in the business, so far as Mr. MacKie knew. At the interview between them, Mr. Russell, who was himself a lawyer, and like Mr. MacKie, had also been connected for a time with the Department of State, informed MacKie that he, Russell, was now the attorney for four of the six heirs of S. S. Howland. This statement was repeated in a letter from Mr. Russell to Mr. MacKie on February 9, 1882, in which he added that he intended to seek a like appointment from the other two heirs. The interview and the subsequent correspondence were not entirely satisfactory to Mr. MacKie. But, without entering into details of the facts, the result seems to have been an understanding between them that Mr. Russell should proceed to represent the S. S. Howland interest, while Mr. MacKie should continue to represent the G. G. Howland estate, and that they should co-operate in the prosecution of the claim. Mr. Russell did not claim to represent any more than the one-half interest that belonged to the estate of S. S. Howland; and it was not until six years afterwards, in 1888, that he became connected with the G. G. Howland interest. Mr. Russell claims that Mr. MacKie did not thereafter cooperate with him, as he had promised to do; and there is some recrimination in the record in this regard between Mr. Russell on the one side, and Messrs. MacKie and Woodruff on the other. What appears from the record, however, is that in the seven years from the beginning of 1882, to the middle or latter part of 1888, Mr. Russell is not shown to have done anything whatever in the prosecution of the' claim, except to address one letter to the Secretary of State, under date of April 13, 1883, which failed to have any effect; and he does not appear even to have known what was going on or what was being done in regard to the matter; while Messrs. MacKie and Woodruff, the latter principally, were diligently at work to have the joint resolution passed by Congress carried into effect. It seems to have been understood that the State Department was hostile to the purposes sought to be effected by the joint resolution; and it was not until December 5, 1885, that a convention or treaty was signed between the Government of Venezuela and that of the United States in accordance with the provisions of the joint resolution. The treaty was not ratified, however, until nearly four years afterwards, on June 3, 1889; and there was delay even after that in the appointment of the commissioners to constitute the commission. At last the commission was organized on September 3, 1889, and entered upon the performance of the duties for which it had been created. The record discloses frequent and very considerable activity by Mr. Woodruff in the shaping of the business during these years; but scarcely any action by any one else of those here interested. In the spring of 1888, Mr. Charles H. Russell, Jr., and Mr. Samuel S. Howland, a brother of Mr. Meredith Howland, who claimed to be acting under a power of attorney from the latter, who had been residing in Europe for some years, undertook to displace MacKie from his attorneyship for the G. G. Howland interest, and with him, of course, Woodruff. Assuming that the power of attorney given to MacKie in 1868 by W. H. Aspinwall had lapsed with the failure of the Caracas Commission to allow the Howland claim, and without the assignment of any other reason, although even as late as March, 1888, Samuel S. Howland had been in communication with MacKie as the attorney for the claim and requesting information from him in regard to its condition, he notified him by letter dated July 22, 1888, that he would put the G. G. Howland interest in the hands of Mr. Russell; but that Messrs. MacKie and Woodruff would be dealt liberally with and retained as associate counsel. MacKie seems not to have answered this letter, or to have taken any notice of it. But by letter of July 20, 1889, which was shortly after the promulgation of the new treaty with Venezuela, and about six weeks before the organization of the commission under it, he notified Mr. Samuel S. Howland that he was ready to proceed with the prosecution of the claim. Howland replied reiterating the substance of his last previous letter, and declining to recognize any legal claim on the part of MacKie to represent the estate. And this was followed by the execution of a power of attorney by Meredith Howland, on October 29, 1889, in favor of Charles H. Russell, Jr., containing in it a revocation of all previous powers of attorney in the premises given by him or his predecessors. Russell, also, it seems, entered into contract with the estate of G. G. Howland for a compensation to himself of 50 per centum, to be paid only, it would'appear, in the event that the estate should not be called upon to pay under the MacKie contract. In other words, Russell was to hold the G. G. Howland estate harmless against the claim of MacKie. The claim was filed before the commission. The memorial was filed by Mr. Russell and Mr. James Lowndes, whom he had associated with him in the prosecution of the case. Mr. MacKie and Mr. Woodruff appeared also; and there was something of an altercation in regard to the production and deposit of the bonds. Arguments and statements were made both by Russell and by Woodruff; but the main argument was made by J. Hubley Ashton, Esq., as counsel for the United States. The commission did not undertake to determine the respective rights of Messrs. Russell, MacKie and Woodruff; but found in favor of the claim as the “ Claim of W. H. Aspinwall, executor of G. G. Howland and others v. The United States of Venezuela, No. 18,” and awarded therefor the sum of $392,829.06, and issued a certificate for the amount to Joseph K. McCammon and James Lowndes jointly as trustees “ in trust for those concerned as their interests may appear, or be lawfully determined.” Mc-Cammon and Lowndes had been agreed upon by the parties through their respective attorneys as trustees to hold the fund; and they have already received portion of it and the residue will be paid in due time. The agreement under which they hold the fund is as follows: “ United States and Venezuelan Claims Commission. “ In the matter of the Claim of W. H. Aspinwall, as Execu“tor of G. G. Howland, and others, “against No. 18. “ The United States of Venezuela. “ It is hereby stipulated and agreed that the certificate or certificates which may be issued by the commission in the above entitled cause shall be delivered to or issued to Joseph K. McCammon and James Lowndes, to be held by them jointly in trust for the persons who shall be determined by agreement or finally adjudged or decreed by a court of competent jurisdiction to be entitled thereto in the proportions in which they shall be so determined or so adjudged or decreed to be so entitled thereto; and service of all papers in such proceedings shall be admitted in behalf of the respective parties by their attorneys now appearing for them or who may be regularly substituted in their stead. (Signed) “ James S. MacKie, “ By Joseph K. McCammon, “Attorney, &c. (Signed) “ Meredith Howland, Admr., &c., and “ other claimants in petition filed by Charles H. “ Russell, Jr. “ By James Lowndes, their attorney. “Washington, D. C., “ August 9th, 1890.” Thereupon, on November 5, 1890, the present proceedings were instituted to determine the rights of the parties to the fund. MacKie and Woodruff claim to be entitled to receive the fund and disburse it, and to retain one-third for their own services. The Howland heirs deny their right, and deny that they are entitled to anything from them or from the fund, on the ground that there was no contract ■subsisting between them. There are three suits. The first was instituted, as stated, on November 5, 1890, and was filed in the name of Meredith Howland, administrator of G. G. Howland, and the present representatives of the estate of S. S. Howland, against Mc-Cammon and Lowndes, as trustees, and MacKie and Wood-ruff, to enjoin the two latter from setting up claim to the fund, and to direct the trustees to make payment to the complainants. The second suit was filed in the name of James S. MacKie against the complainants in the first suit as defendants, and also against the trustees and Woodruff as co-defendants with them; and the prayer of the bill was that the trustees should be enjoined from paying the money to the Howlands, and that he (MacKie) should be decreed to be entitled to receive one-third of the fund for his own use in compensation for his services. The ftiird suit, which soon followed the others, was filed in the name of Woodruff against the complainants in the first suit as defendants, and against the trustees and MacKie as co-defendants; and the tenor of the bill of complaint is substantially the same as that of MacKie’s bill. Its prayer is that the complainant Woodruff be decreed to be entitled to one-sixth of the fund. It is understood that there is no antagonism between Mac-Kie and Woodruff, and that the former, in claiming one-third of the fund, is willing that one-half of that one-third should be assigned to Woodruff, in pursuance of the agreement between them. These suits of MacKie and Woodruff, although in form independent suits and not purporting to be cross-suits, may be assumed to be practically such, and as such it seems they have been treated. A large amount of testimony was taken. During the course of the proceedings, there was an order of court that the trustees should invest the fund in United States bonds, and deposit them in the registry of the court with the clerk; and this was accordingly done. Subsequently there was another order of the court, directing the payment of two-thirds of the fund to the complainants in the first suit; and-this was done. So that now only one-third of the fund thus far collected remains in the registry of the court, subject to the determination of these proceedings. When the causes finally came on for hearing in the Supreme Court of the District of Columbia in special term, that court rendered a decree dismissing the bills of MacKie and Woodruff; and directing the payment of the fund in the registry of the court to the complainants in the first suit, the Howland representatives, according to their respective interests. From this-decree the present appeal has been prosecuted. Mr. Nathaniel Wilson for the appellant, James S. MacKie. Mr.Edward A. Bowers for the appellant, Henry Woodruff. Mr. Walter D. Davidge for the appellees. [MAJORITY — Mr. Justice Morris] Mr. Justice Morris delivered the opinion of the Court: Notwithstanding the voluminous character of the record in this, case, extending, as it does, over twelve hundred printed pages, the salient facts are neither complicated nor numerous, and the questions of law involved are contained within a comparatively narrow compass. It is perfectly apparent, and it is shown by the record beyond the possibility of any reasonable doubt, that the professional services which resulted in the realization of the fund in controversy to the owners of the claim, were all performed by MacKie and Woodruff, and only an infinitesimally small portion of them by Mr. Russell. Without seeking at all to depreciate the energy and alertness of Mr. Russell, we fail to find anything whatever in the record that was contributed by him to the recovery, further than the almost formal matter of the presentation of the bonds before the joint commission. The great burden of the work, consisting of the original preparation of the case for the Caracas Commission, and the difficult and long-continued efforts before Congress and with the Department of State and the President of the United States to procure the re-opening of the work of that commission, and the allowance of the claim, was borne by Messrs. MacKie and Woodruff, and no part of it by Mr. Russell. Even the greater part of the services before the last commission was rendered, not by Mr. Russell, but by Mr. J. Hub-ley Ashton, as counsel for the United States. Whatever services were rendered by Mr. Russell were rendered before that commission; and yet it is perfectly plain that the work before the commission was little more than the mere formal conclusion of the work that had already been accomplished solely and exclusively by Messrs. MacKie1 and Woodruff, without aid or assistance of any kind from Mr. Russell, or from any other person or persons claiming to act in the interest of the Howland claim. This is so clear to us from the record that we would regard any analysis of the testimony to demonstrate it as a useless waste of time and space that would subserve no good purpose. Indeed, we understand that this is scarcely controverted — certainly not seriously controverted by the complainants. The main contention of the argument on behalf of these latter is, that the services, whatever they were, were not rendered under any contractual relations existing between the parties, that could form the basis of a legal liability on the part of the complainants. Undoubtedly, no man can force upon another a legal liability for services not performed at the request, express or implied, of that other person, or that have not been accepted and ratified by him. Where there is no contract, there is no legal liability for services rendered, no matter how valuable those services may have been. This is a very plain and elementary proposition of law, and is nothing more than the dictate of right reason. Whether there was a valid subsisting contract in this case between the parties, is the question that lies at the root of the whole controversy. That there was a contract entered into on the ist of October, 1868, between William H. Aspinwall, as sole surviving executor of the will of G. G. Howland, and the personal representatives of the estate of S. S. Howland, on the one side, and James S. MacKie, on the other, for the prosecution of this claim against the republic of Venezuela, is, of course, conceded by all parties. But it is claimed on behalf of the Howlands that this contract and the contemporaneous power of attorney given to MacKie to prosecute the claim were terminated by the failure of the Caracas Commission to adjudicate the claim; and that, in any event, they were ultimately revoked by the Howlands, who had a right to make the revocation. On the other hand, it is claimed by MacKie and Woodruff that the contract and power of attorney executed in 1868, did not expire, and were not intended to expire, with the failure of the Caracas Commission; and that, when the Howlands afterwards, in 1882 and 1889, attempted to revoke them, they could not legally do so in such manner as to deprive MacKie of his stipulated compensation. The contract and power of attorney are not in terms confined to the prosecution of the claim before the Caracas Commission. The power of attorney from Aspinwall to Wolcott authorizes the latter to represent Aspinwall in the matter of the claim “ before any court, tribunal or commission whatever.” The substitution of MacKie by Wolcott is as broad as the power vested in the latter; and the specific provision of MacKie’s contract is that he will present the claim “to the proper tribunal having cognizance of the same” under the convention between the two governments (of Venezuela and the United States) of April 25, 1866. Undoubtedly it was assumed at the time that the Caracas Commission was “the proper commission” for the purpose; and the anticipation was that the claim would be allowed and an award made by that commission. But when that commission adjourned, practically without any action whatever on the claim, refusing in fact to take cognizance of it, it would be an extremely narrow and illiberal construction of the understanding between the parties, that it should be taken not to extend to any other commission that might be created in pursuance of that treaty or of any treaty supplemental thereto. That this was not the understanding of the parties themselves at the time, or at any time prior to the year 1875, is plain from the fact that MacKie, with the consent and at the request and instigation of William H. Aspinwall, continuously during the period from 1868 to 1875, inclusive, expended his time and labor and money in attempts before the Congress of the United States and the Department of State, to reverse the action of the Caracas Commission and to procure the appointment of a new commission to consider the claim; and from the fact also that during all that time he retained the possession and control of the bonds. Assuredly these circumstances are wholly inconsistent with the theory that his employment was terminated with the failure of the Caracas Commission. Nor does the return of the bonds, which is satisfactorily explained by MacKie as being a return with the understanding that they should be forthcoming when needed, imply that the agency of MacKie was abandoned and came to an end in December, 1875. No such significance was attached to the act at any time by any of the parties. But so far as the estate of G. G. Howland is concerned, the decisive fact in this connection is, that, when in the year 1882, the efforts of MacKie and Woodruff were about to culminate in substantial results, Meredith Howland, the administrator with the will annexed of G. G. Howland, and so the official successor of Wm. H. Aspinwall, distinctly and positively recognized the existence of the contract between MacKie and the estate of G. G. Howland, and induced Mac-Kie to proceed to act thereunder. For it would be idle to 'suppose that MacKie’s inquiry of Meredith Howland under date of February 1, 1882, whether the latter did not regard the contract of 1868 as yet in full force and binding, as being merely a request for a legal opinion.. The suggestion is not worthy of serious consideration. The circumstances demonstrate conclusively that, with the view to the removal of all doubt as to the continued subsistence of the contract and in contemplation of the employment by him of Wood-ruff as his associate in the case, MacKie had an interview with Mr. Meredith Howland, on or before the first day of February, 1882, to have some assurance from the latter that he (Howland) regarded the contract as being yet in force, so that MacKie might safely proceed with the further prosecution of the claim, and with the employment of Woodruff. When Mr. Meredith Howland gave the assurance first verbally, and then in writing, that he considered the contract “ in full force and binding,” every reasonable man will recognize the fact that something more was intended than the mere venture of a legal opinion by a gentleman who does not seem to have been a lawyer. It was a distinct, recognition of the contract as a valid subsisting contract, and practically a renewal of it, with the assurance to MacKie that he might safely proceed under it, that he might expend his time and his money and his efforts under it, and that he might associate with himself such associates as he might deem expedient and incur liability to them. As amounting to less than this we cannot regard the correspondence between Mr. Meredith Howland and Mr. MacKie on February 1st and 2d, 1882. So far, therefore, as regards the estate of G. G. Howland, the contract of 1868 was continued in force, and never ceased to be operative, before its formal revocation by Mr. Meredith Howland on October 29, 1889; and as to the effect of that revocation we will have occasion to refer hereafter. We must, however, come to a somewhat different conclusion with reference to the relations of MacKie to the estate of S. S. Howland. While Mr. William H. Aspinwall exercised some control over that estate as well as over that of G. G. Howland, it is quite clear that even from the beginning his control, was more limited. From the very beginning the parties beneficially interested in that estate assumed to act for themselves, and dealt directly with MacKie in the creation of the agency of the latter. They joined with William H. Aspinwall in the execution of the contract and power of attorney; and while, prior to 1882, they seem to have acquiesced in what was done on their behalf by Mr. Aspinwall and Mr. MacKie, and at all events took no independent action themselves, when, in 1882, there was question of determining specifically their relations to MacKie, they declined to give the assurance which Mr. Meredith Howland did for the estate of G. G. Howland, and commissioned their relative Charles H. Russell, Jr., as their attorney to act for them. It is unnecessary to determine whether they were justified in law in thus declaring their relations with Mr. MacKie at an end, and withdrawing his powers. For we find the fact to be that MacKie acquiesced in their action, agreed to co-operate with Russell, and did not, thereafter, as to them, assert any right to maintain his own authority under the contract into which they had entered with himself. We must regard his action as a waiver of his rights and an estoppel against his reassertion of them. Swain v. Seamens, 9 Wall., 254; Shutte v. Thompson, 15 Wall., 151; Bank v. Roop, 48 N. Y., 292. It is very true that Russell proceeded to make his contract with the representatives of the S. S. Howland interest before he or they had any conference with MacKie in regard to the continued validity of his contract, or his further proceeding under it; and that the contract of Russell was not superin-duced by any waiver of right on the part of MacKie. But whether Russell’s action at the time was justified or not, it was incumbent upon MacKie then to insist upon his own rights, if he still regarded his own contract as being in force, and he desired to proceed with it. His acquiescence in Russell’s adverse claim and his promise and agreement of co-operation with him, were plainly such a waiver of right that it would not now be equitable to permit him to reassert his claim. Whether, under the circumstances, he is not entitled' to a quantum meruit for the services previously thereto rendered by him, may be a question; but with such question we have nothing to do in these proceedings. When in 1889 the services of MacKie and Woodruff had been crowned with success, and a new commission had actually been organized in Washington under the treaty reviving the business of the Caracas Commission, and when little more remained to be done than to bring the Howland claim formally before that commission, Mr. Meredith Howland, as administrator de bonis non of the estate of G. G. How-land, was induced to revoke the power of attorney given to MacKie in 1868, and ratified by himself in 1882, and to execute a new power of attorney to Charles H. Russell, Jr., as well as to enter into a contract with the latter to pay him one-half of the proceeds of recovery instead of the one-third which had been agreed upon as MacKie’s compensation. If Mr. Meredith Howland could revoke the power of attorney given to MacKie he certainly could not thus abrogate the contract, or escape the liability that had been incurred under the contract, when the stipulated services had all been substantially rendered, and the attorney was ready, willing, and able to complete the small residue of the contract that remained to be performed. This is so plain a proposition that it is unnecessary to waste words upon its discussion. What Mr. Howland’s reasons and motives were we are left to conjecture. None were assigned at the time, and we are justified in assuming that none of a satisfactory character could have been assigned. His action, so far as it sought to affect the right of MacKie and Woodruff to their stipulated compensation, we must regard as a nullity. It is objected, however, that the contract of January 1, 1868, was invalid; that it was a contract beyond the power of an executor or administrator to make; and that it was an improper disposition of the assets of the Howland estate, and that both William H. Aspinwall in executing in 1868 and Meredith Howland in ratifying it in 1882 exceeded their authority. This position is wholly untenable. The action of William H. Aspinwall was not an unlawful, unusual, or improper disposition ot any assets of the estate in his hands, but an honest attempt to collect assets and to reduce them into possession. And the law is too well settled to be a legitimate subject for discussion, that an executor, charged with the duty of the collection of the assets of his estate, may enter into all reasonable and proper contracts to effect such collection — into any contracts, in fact, for that purpose that any ordinarily prudent man might make to collect similar claims for himself. And it is for himself and not for the court of probate to make the contracts. In view of its supervisory power over their accounts a court of probate, of course, has a check upon the contracts of executors and administrators, and yet it has neither power to make contracts for them, nor to direct or authorize them to malee any. While their authority comes from the court, their powers are derived from the will or from the statute. In this regard they stand differently from receivers appointed by a court of equity. That the executor in this instance had the right and power to contract with competent persons to aid him in the collection of the assets which he desired to collect for his estate we regard as beyond question. And that the contract which he did make was a reasonable and proper one, as we understand it, is beyond cavil. For it is no more than an agreement to pay MacKie one-third of the amount which he might recover, as compensation for his services in effecting the recovery. When we contrast it with the contract with Russell it is certainly more advantageous than that to the Howland estate. After all we cannot ignore the fact that this controversy, although in form a controversy between the Howlands, on the one side, and MacKie and Woodruff, claiming compensation as their attorneys, on the other, is, in fact, a contest between rival attorneys as to which shall receive the amount allowed for compensation. The Howlands have no real interest in these suits. No part of the money in court is to go' to them under any circumstances. It is a question only whether it shall be paid to MacKie and Woodruff under a contract, which, so far as the record discloses, has been honestly, faithfully, and efficiently performed, or.to Russell, under an agreement under which, however willing he may have been, nothing has been done, or only comparatively little. From what we have said it results, in our opinion, that Messrs. MacKie and Woodruff are entitled in equal moieties to one-third of the one-half of the fund paid on behalf of the G. G. Howland estate, and that they are not entitled to any compensation in this suit from the portion óf the fund belonging to the estate of S. S. Howland. We are compelled, therefore, to regard the decree of the court below as erroneous, and we mtist reverse thai decree, with costs, and remand the causes to the Supreme Court of the District of Columbia, with directions to enter a decree in accoi'dance with this opinion. And it is so ordered.