—All of the objections raised, except the one (c) that the payment of attorneys’ fees was excessive are sufficiently answered by the provisions of the Code, sections 2555 and 2753.
The former provides that “ the revocation does not affect the validity of any act within the powers conferred by law upon the administrator * "" * done by him before the service of the
citation, .where the other party acted in good faith; or done after the service of the citation and before the entry of the decree where his powers with respect thereto were not suspended by service of the citation * * * and he is not liable for such an act done by him in good faith.”
The latter section provides that upon the settlement of the accounts of an admisistrator “ the surrogate must allow bfm his just, reasonable and necessary expenses actually paid by him.”' No allegation of bad faith or lack of good faith is made. There remains.then only the question raised by the objection that the-amount paid for attorneys’ services was excessive. Upon the trial evidence was given upon the theory that the- administrator-could only be allowed for the value of the services rendered by the attorneys upon a quantum meruit, and expert witnesses were called who testified in answer to hypothetical questions as to the value of such services.
This seems to have been an erroneous theory as- the services, were rendered pursuant to a general contract existing between the consular agent- and his attorney made in 1911, applicable to all cases arising in his jurisdiction, in which he should receive letters of administration upon the estates of deceased Italian *216subjects. (Morehouse v. Brooklyn H. R. Co., 123 App. Div. 680 ; affd. 195 N. Y. 537.)
The contract was proven by correspondence between the consular agent, Baccelli, and his attorneys covering a period between May 18th and October 11, 1911. These letters show that the compensation agreed upon should be forty per cent, of the damages recovered either after trial or upon settlement. The letters comprising such correspondence were stipulated into the case by counsel by stipulation dated December 22, 1915.
The statute expressly permits an attorney “ to regulate the amount of his compensation by agreement with his client, which is unrestrained and unlimited by law,” and we cannot see how such an agreement can be interfered with and held illegal until the question has been fully and fairly investigated and the facts relating to the transaction plainly established by a trial.
“ The statute conferred upon the parties the right to make the contract, and conferred upon the court no authority to make it for them. If, however, upon a proper examination of the appellant’s claim, it shall be found that the agreement between himself and his client was induced by fraud, or that the compensation provided for was so excessive as to evince a purpose to obtain improper or undue advantage; the court may correct any such abuse.” (Matter of Fitzsimmons, 174 N. Y. 15.)
This- rule has been upheld in the following cases where contracts upon a contingent basis have been involved: Morehouse v. Brooklyn H. R. R. Co., 185 N. Y. 520 ; Ransom v. Ransom, 147 App. Div. 835 ; Morehouse v. Brooklyn H. R. R. Co., 123 id. 680 ; Ransom v. Cutting, 112 id. 150 ; affd. 188 N. Y. 447 ; Weeks v. Gattell, 125 App. Div. 402 ; Murray v. Waring Hat Mfg. Co., 142 id. 515.
The contestant introduced no proof and there is no evidence that there was any fraud or improper or undue advantage taken of the administrator. ,
*217Unless there is evidence of fraud or undue advantage taken of the administrator the court cannot, under the doctrine laid down by the Court of Appeals in Matter of Fitzsimons, supra,, alter or change the contract.
The only evidence offered by the contestant was the expert opinion of certain members of the bar that such charge was excessive. That evidence would be proper and competent if the claim for the fees was based upon quantum meruit theory. The rights of the attorneys in the case are based on an express contract. In the language of Morehouse v. Brooklyn H. R. R. Co., 123 App. Div. 680, on the new trial ordered by the Court of Appeals: “ All of the testimony offered by the defendant consisted in a hypothetical question to a leader of our. bar, which did not embrace all of the services detailed by the plaintiff and which asked merely for the value of the services described therein. One very properly may demand, a larger compensation if it is to be contingent, not certain. We would not be justified to disturb the finding of fact. (Citing cases.) The client did not discharge his attorney during the litigation so as to relegate the attorney to quantum meriut.” (P. 680.)
Along the same line the court in Werner v. Knowlton, 107 App. Div. 158, an action to recover for value of professional services fixed by express contract, said: “ We do not think that an attorney who expressly fixes the rate of compensation with a client, in the absence of some evidence of fraud or overreaching, is compelled to submit the validity and binding force of his agreement to any such test as this (on the basis of quantum meruit). Section 66 of the Code of Civil Procedure expressly provides that 1 The compensation of the attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law’. If the contention of the counsel for the appellant upon the facts as developed in the case is correct it would be entirely useless for an attorney to make an agreement fixing his compensation. Any agreement which he *218and his client might make, fixing Tor the protection of both the value of the services to be rendered, would always be subject to revision and modification by a court or jury which might entertain a different idea of values.”
In view of these authorities and upon the proofs herein it seems to me the amount paid by the administrator to his attorneys must be allowed and objections thereto overruled.
It appearing that the estate is ready for final settlement and distribution I can see no reason why such distribution should not be made at this time as authorized by sections 2555 and 2734 in accordance with section 2725 of the Code of Civil Procedure. The decree may therefore provide for distribution. to the next of kin after deducting the expense of the accounting as follows: To Grazia Pasoncchi D’Adamo, widow, one-third; Oblara D’Adamo, daughter, two-thirds thereof. These parties being Italian subjects residing in Italy, their respective shares may be paid over to G. Fara Fomi, consul general of the Kingdom of Italy, residing in Hew York city, for them. (Matter of Tartaglio, 12 Misc. Rep. 245 ; Matter of Davenport, 43 id. 513.)
Decreed accordingly.