In the will of John Pancake, Sr., he makes two devises of the same property: "I give and bequeath unto my youngest children Jane and Harvey two-thirds of all my lands in the bottom, *** all of which real estate I give and bequeath unto the said Jane and Harvey unto them and their children." It would seem clear that by the first devise he had given a fee simple estate to Jane and Harvey, and then afterwards had attempted to waive or limit the estate he had previously given them in fee simple.

It would seem that the testator's will in this case was drawn by a person who was unskilled in the use of language and that what the testator meant by the qualifying provision in item two was simply a request or wish or design, which last word he uses, that this land devised to Jane and Harvey should not be disposed of by them or their children, and the language is in the nature of a precatory declaration. The last clause, providing that if either of the above children should die then the other to possess the whole, it seems would give to the survivor a fee simple, as it certainly would after the elimination of the alienation clause, and if the one so dying had children they would be cut out. There is no life estate created by the language used in this item and it is uncertain what construction was meant by the language "to them and their children."

The conclusion is that Jane and Harvey took a fee simple estate.

Judgment affirmed.

SAYRE and MERRIMAN, JJ., Concur.

App.]

Boldt v. Baker.

BOLDT V. BAKER ET AL., EXRS.

Attorney and client

·Contractual rights and

relationship — Employment in alimony case terminates, when Client cannot recover fees-Paid to attorney upon employment - Action dismissed by adverse party.

1. Prior to the relationship of attorney and client, a lawyer may bargain for his services with a prospective client and deal with him at arm's length.

2. The employment of an attorney to prosecute an alimony case, in the absence of special circumstances to the contrary, terminates upon the entry of a final decree.

3. Where a client enters into a contract with a lawyer to defend a suit, as her attorney, and at the time pays him for same a specified amount, the attorney is to perform with reasonable diligence all professional services required on her behalf in the case named, and if such case is subsequently dismissed without prejudice by the plaintiff, the attorney having performed all services required of him up to the time of the dismissal, the client can not recover, on the ground of failure of consideration, any part of the sum paid the attorney.

(Decided May 3, 1920.)

ERROR: Court of Appeals for Hamilton county.

Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

Mr. John C. Healy, for defendants in error.

BY THE COURT. Plaintiff in error, who was plaintiff below, brought an action against the executors of the late Charles W. Baker, an attorney at law, practising in Cincinnati. The action was in form similar to the old action for money had and received, plaintiff claiming that the decedent had been unjustly enriched at her expense.

On October 31, 1912, she had entered into a contract with Charles W. Baker, and, on that day paid

to him $4000, as payment in advance for services in an action for divorce which had theretofore been filed against her by her husband, Charles Boldt. The plaintiff voluntarily dismissed the divorce case on August 18, 1913.

Her claim for relief is based on two contentions.

The first is that at the time of the making of said agreement the relation of attorney and client existed between her and said Baker, and that the exaction of said payment was exorbitant and unreasonable, but that this was unknown to her and she relied upon the good faith of her said attorney. She asks that there be returned to her the sum of $4000, less reasonable compensation for the services rendered by Baker in the divorce case, which she sets at $250, leaving a balance of $3750 claimed by her.

The second contention is that at the time she employed Mr. Baker in the divorce case it was an implied condition of said advance payment of $4000 that said case would be tried, and not dismissed without trial by plaintiff in the divorce case. She says that the divorce case never came to trial, but, on the contrary, plaintiff therein voluntarily, and without any procurement on the part of said Charles W. Baker, did, on August 18, 1913, dismiss said case without prejudice to another action. By reason of this there was a failure on the part of Baker to perform the services that were within the contemplation of the parties at the time the contract was made, and that she is entitled as a matter of law to the return to her of that portion of the fee to be earned by services that were to have been rendered, but, which, in fact, never were performed.

The answer of the defendants contains recitals of fact and averments which are allegations of evidence, but the answer denies that the relation of attorney and client existed between the decedent and the plaintiff at the time of the employment in the divorce suit and the payment alleged in the petition. It also alleges that decedent rendered such legal services for the plaintiff in the divorce case as were required by the contract of employ

ment.

The case was tried to a jury in the court of common pleas, and, at the conclusion of the evidence of plaintiff, the court directed the jury to return a verdict in favor of the defendants. Judgment was entered on the verdict and plaintiff prosecutes

error.

• The defendants at the outset make the contention that the plaintiff could not maintain an action at law, but was first required to proceed in equity to set aside the agreement. That this doctrine, applicable to deeds to real estate and to releases in personal injury cases, is not of universal application is settled in this state by the case of Taylor v. Brown et al., 92 Ohio St., 287, 299. Where the remedy at law is adequate and full, it may be had without a judicial rescission.

We will, therefore, take up the two grounds on which plaintiff bases her claim to recovery.

The record shows that on November 8, 1909, plaintiff employed Baker as her attorney to bring an action against her husband for alimony in the court of insolvency of Hamilton county, Ohio. From a decree in her favor, the defendant appealed to the circuit court, and while the suit was pending

the parties made a contract of separation, and adjusted their financial matters, and this contract was incorporated in the final decree of the circuit court, entered December 14, 1911. Under the terms of this agreement, Mrs. Boldt was to pay her own attorney's fees, and she did pay decedent a check for $3500 that she received by the contract and decree. There is no evidence of any further employment or continuance of the relation of attorney and client between Baker and Mrs. Boldt prior to the agreement here in question, except such as is furnished by the following.

In August, 1912, there was a reconciliation between Mrs. Boldt and her husband, and, on August 19, 1912, a letter addressed to Charles W. Baker and signed by Charles Boldt was delivered to Mr. Baker's office by Mrs. Boldt, wherein Mr. Boldt said that a reconciliation had been effected, and that he had agreed to make certain payments.

On October 2, 1912, Mr. Baker sent to Mrs. Boldt a bill for $1000 for professional services, and, on October 11, caused a letter to be written to her calling her attention to the fact that the bill was unpaid and requesting her to pay.

The domestic felicity of the Boldts terminated shortly after the reconciliation, and, on October 29, Charles Boldt brought an action for divorce in the court of common pleas. Two days later, Mrs. Boldt entered into a written contract with Charles W. Baker, which is as follows:

"Mrs. Amalia W. Boldt has this day employed C. W. Baker as her attorney in the case of Boldt v. Boldt, No. 151955, Court of Common Pleas.