dissenting, said:
I do not concur in the opinion of the majority, and as my dissent goes to the construction of an important statute of this State, I will briefly explain its grounds.
The estate devised was in amount about |50,000 as the record discloses, and claims were urged against it by suit amounting to its full value or nearly so. The beneficiary under Lemuel *24Turner’s will was his former slave, and her whole interest under this will was in jeopardy. John T. Dillard, the executor named in the will, qualified as such in February, 1879, and while the suit of Narcissa E. Dillard was pressed against the estate of Lemuel Turner, deceased, having been brought about the time of his death, under circumstances explained fully in the late case in this court of Turner’s Adm’r v. Dillard, 82 Va., p. 586, nothing was done to defend the estate against demands which went to its full value. The appellant in this case, who was entitled to the estate which should remain after the payment of its debts, understood her interests sufficiently well then to seek out the appellee, the Hon. Thomas P. Fitzpatrick, an able and successful lawyer of the county, and solicit his professional services in her behalf.1
She was without money to pay fees, and whatever compensation her counsel should receive, if he undertook to serve, must necessarily be wholly contingent, and while she was not able to pay him anything in advance, she offered and agreed to pay him, in the event of a successful issue, all of the estate except the “ Bob Creek ” farm upon which she lived. That she so agreed is proved by the appellee in the record and admitted by her.
The appellee, for reasons not appearing in the record, succeeded in having Dillard removed as executor, and procured the appointment of himself as administrator de bonis non. The work of defending this estate from the assaults of the disappointed relatives of the testator, who was a bachelor, then commenced in earnest, with the assistance of other able counsel, and was so far successful, that recoveries were defeated» as to all of these claims, except $18,000, for which decree was rendered by the circuit court of Nelson county. But the appellee appealed to this court, where the said appellant was completely successful, and the suit of the Dillards was dismissed for reasons stated in the case of Turner’s Adm’r v. Dillard, supra.
*25The litigation being now ended, the appellee called upon her, the appellant, not to comply with her original agreement before the work began, but took from her a very much smaller assessment, as is set forth in the opinion of the majority in full. This she readily and cheerfully agreed to do, and expressed her thanks and gratitude that the appellant, her counsel, had been so liberal with her.
Camp, the witness, does say that he understood the fee was to be $5,000, but he also says that he paid very little attention to the details of the matter, and that he did not charge his memory with it. But he also says:
“The contract (set forth in full in opinion of majority) was then read in the presence and hearing of all in the room; at the end of nearly every paragraph Captain Fitzpatrick would make an explanation, so that it might be clearly understood. After W. C. Fitzpatrick (the son of appellee) finished reading the article, Emily Thomas expressed herself perfectly satisfied, and thought, taking everything into consideration, Captain Fitzpatrick’s fee was reasonable enough, and signed and acknowledged the same in my presence, and I, as a justice of the peace, certified the same.” He further says the appellee “showed every disposition to make the matter perfectly clear to her—frequently, while it was being read to her, would have the reading stopped and he would explain to her, and he seemed very desirous that she should understand every part of the contract before signing the same.”
And further, that he had known the appellant from her birth, and that he had always considered her a person of good mind.
Now, here we have a contract entered into freely and voluntarily after full explanation, by a person of good mind and understanding, for a valuable consideration. And this was acquiesced in until, applying to her trustee for money, the appellant w'as refused any payment, because the interest up to 1890 had been assigned to her said counsel; and she then and *26subsequently declared that she did not understand the contract she had made.
This contract was enforced by the learned judge of the circuit court, but by the opinion of the majority it is set aside.
Because by an “equitable and wisely-established rule which applies to such cases,” “all dealings between attorney and client, for the benefit of the former, are not only regarded with jealousy, and closely scrutinized, but they are presumptively invalid on the ground of constructive fraud, and that presumption can be overcome only by the clearest and most satisfactory evidence.”
My opinion is that there is no such rule established in Virginia, whether it be equitable or inequitable, wise or unwise.
But that by the mandate of express statute, an attorney at law is entitled to the benefit of his contract with his client for his fee, exactly like any other person claiming under any contract is entitled to the benefit of his contract, which is honestly and fairly entered into, without deceit or fraud.
And that no other nor greater burden is placed upon an attorney contracting with his client by the law than is placed on any and all persons making contracts.
Here is the law in our Code upon the subject of attorney’s fees:
(Section 11, chapter 160, Code of 1873), in force at the time this contract was made.
“An attorney shall be entitled as a fee to the amount which the clerk is authorized to tax in the bill of costs in any suit or for any service as such attorney.
“But ANY CONTRACT made WITH AN ATTORNEY EOR OTHER OR HIGHER EEES SHALL BE VALID, AND MAY BE ENFORCED IN LIKE MANNER WITH ANY OTHER CONTRACT.”
How, what does this mean ? Any contract with an attorney ! To be enforced in like manner with any other contract.
We are told in the opinion that all dealings between attorney and client, for the benefit of the former, are presumptively invalid on the ground of constructive fraud.
*27A contract for other and higher fees is certainly one for the benefit of the attorney, but the law says that shall be valid, and that it shall be enforced in like manner with other contracts.
This statute is still the law in Virginia; it was somewhat amended in the report of the revisors. Chapter 155, section 3239, page 736, of the printed report of the revisors to the legislature, and was adopted as proposed by those gentlemen by the legislature.
It is now as follows:
“Sec. 3201. Attorney’s fee.—An attorney shall be entitled as a fee to the amount which the clerk is authorized to tax in the bill of costs in any suit or for. any service as such attorney.
“But any contract made with an attorney for higher compensation shall be valid, and he may recover such sum as he contracts for from the party for whom the service is rendered; and if there be no such contract, he may recover from such party what his services are reasonably worth.”
Code of Virginia, section 3201, in force May 1st, 1888.
Then I may ask, where does this supposed “equitable and wisely established rule” stand in this State?
The legislature is our law-making power.
“The legislative power of this Commonwealth shall be vested in a general assembly, which shall consist of a senate and house of delegates.” Constitution of Virginia, Article 5, section 1.
It is not in the power of this court to set up any rule, however wise, in plain contravention of a statute.
But, says the opinion, this statute applies to contracts made before the relation of attorney and client began.
The authority for this limitation upon this statute is not given; the statute does not so limit itself. The statute says any contract made with an attorney .for other and higher fees. That is, by a client, for clients are the persons who contract to pay fees.
*28And the statute is express that this contract shall be enforced in like manner with any other contract; that is, it is to bear no other burden than such as is borne by any other ■contract. I might well stop here and consider my task as finished; but as this statute has recently been under consideration in this court as at present constituted, and as the opinion in that case was unanimous, I will cite it.
In the case of Yates and Ayers v. Robertson and Berkeley, 80 Va. R., p. 475, this court, referring to this statute (chapter 160, section 11, of the Code of 1873, supra) said:
“The ground of this exception is that, by section 11, chapter 160, of the Code of 1873, the fee of an attorney is fixed ■and limited to the amount which the clerk is authorized to fax in the bill of costs in any suit; and that by section 13, of chapter 181 of the Code, such fee in this cause so authorized to be taxed is two dollars and fifty cents. Section 11, chapter 160, supra, does provide for such a fee, but the section further provides: “ But any contract made with an attorney for other •or higher fees shall be valid, and may be enforced in like manner with any other contract.”
Under the 14th and 15th sections of chapter 76, of the Code ■of 1810, volume first, the lawyers of the Commonwealth were limited to fees provided for in the said 14th section, the 15th ■section providing that no lawyer in any suit to be brought for his fees or services, shall recover more than the fees so provided, notwithstanding any agreement, contract, or obligation ■entered into by the party against whom such suit shall be brought, retaining from the older acts of 1761, chapter 3, ■sections 11 and 12, of edition of 1769, and chapter 71, section 12, of editions of 1794,1803, and 1814 the provision: “ If such ■agreement, contract, or obligation shall have been entered into before the suit or suits in which such fees shall have accrued, -or services been rendered; were finally determined,” which ■provisions were in force from January 1st, 1820.
The legislature, however, January 2,1840, repealed this pro*29vision of the law and enacted the provision cited supra as part of section 11, chapter 160, of the Code.
“But any contract made with an attorney for other or higher fees shall be valid, and may be enforced in like manner with any other contract”; which provision appears in the Code of 1849, and is the law, as we have seen, in the present Code.
In arriving at the true construction to be given to this provision of the law, as found in 11th section of chapter 160, we may observe the striking contrast between the severe restriction to be found in the 15th section, of chapter 76, of the Code of 1819, and the entire absence of all restriction in the present law.
The policy of the law as to the lawyers appears to be entirely-changed, and they are left free to conduct their business transactions with their fellow men upon the same basis as other citizens; they and those dealing with them to be mutually bound by their contracts, express or implied.
Mr. Minor, speaking upon this subject, says: “In respect to' the compensation of attorneys, the policy so long and so vainly persisted in of prescribing and limiting their fees was abandoned at the revisal of 1849, so that since that period an attorney may make any contract for fees with his client and it will be valid, and maybe enforced like other contracts” (citing section 11, chapter 160, Code 1873, supra).
“Nor does it seem to be material whether the contract is express or implied, so that if no contract be proved, the attorney will be entitled to receive a fair and adequate compensation for his services. It should be observed, however, that the clerk is not authorized to tax against the losing party any other attorney’s fee (whatever the successful adversary may have actually paid) than the very inconsiderable sum prescribed by law, in most cases not to exceed f 2.50 in a court of law,” &c. 4 Min. Inst., 477.
And it may be further said, that this is taxed only on one *30side, to be paid to the winning side, and nothing is provided as to the attorney’s fee on the other side.
Under the construction contended for by the plaintiffs in error, what is the .fee to be paid to the attorney on the losing side ? The law makes no provision for it whatever; it is left to depend upon contract. Aiid this fee, fixed and provided in the statute, is intended for cost, to recompense the party to the cause for his outlay, &c., and is in no wise intended by the. law makers to limit the fee of a lawyer as between him and his client, which is expressly left to depend upon contract between the parties which, like contracts growing up in the transactions of other citizens of the Commonwealth, may be either express or implied.”
The legislature responded to this interpretation of its statute, by amending the law in accordance with our construction of the same, so as to make it so plain that nothing should hereafter be left to construction, and the statute as we have seen is extended by express words to cover the case of an implied contract, and the foregoing case is cited in the margin by the code makers. The decision now in hand, as I understand it, sets back the law fifty years, and goes behind the statute of 1840, supra. And if a decision of this court can amend or alter a statute, then the statute I have been considering has ceased to exist. But I do not consider that the decision of any case can have that effect, except so far as the case in hand is concerned, and the law is still in force for the future. But in this case I may remark that in my opinion the appellee has suffered a diminution of his just rights. His contract with his client is overturned because it was with his client, and although the client, who was a person of good sense, surrounded and advised by her natural protectors, her husband and her adult sons, deliberately and consciously made, because her counsel agreed not to let her sign it until she said she understood it. She has succeeded in having it set aside upon her subsequent declaration that she did not understand it, aided by *31certain supposed presumptions of the law, which have no existence in this State, and have not had for fifty years.
Upon the question as to what the fee should reasonably have been upon the principles of a just compensation for services rendered, Judge Brown testifies that the demands defeated by Judge Fitzpatrick would have swallowed up the whole Turner estate if they had been allowed, and that under the contract the fee would not have exceeded $8,000; and says further, “ I feel no hesitation in saying that the contract is in all respects a reasonable one, and should be approved by the court.”
Mr. Caskie, a well-known and able lawyer of that bar, testifies that claims against the estate of Turner would have aggregated $80,000 if successful, and says: “ I should certainly regard $5,000 as an inadequate fee by itself, and that one-third of the sum which the court of appeals reduced the decree of the circuit court, would be exceedingly reasonable.”
Mr. W. M. Cabell, another prominent lawyer and citizen of that county, testifies that the bulk of Turner’s estate would have been swept by the defeated claims, and says that $5,000 out of the principal of the estate should be paid appellant in addition to the assignment out of the interest (and so also said Mr. Caskie above mentioned), and that the contract is reasonable and should be enforced.
Mr. R. M. Brown, the counsel who brought the original Dillard suit, says: “The case required great labor on the part of counsel, both in court in the argument, and out of court in taking depositions, and these duties were assiduously performed by Judge Fitzpatrick, and elaborately with eminent skill and ability, and that $8,000 would be reasonable and fair.” That is a contingent fee to him of one-fifth of $40,000 in order as he succeeded in wholly defeating claims fully to that amount.
The late Hon. Ro. A. Goghill, a lawyer of extensive practice and wide fame in Virginia, and counsel for the Dillards, testifies as follows: “ The case was well managed, there *32is no doubt about that, and it required very great labor, and was properly defended. I think, taking all the circumstances together, his fee was contingent after all, because if the pretensions of the parties had prevailed it would have swept the whole estate, and I think $8,000 or $10,000 would be a reasonable fee.”
The matter was considered by Commissioner Cabell, and he reported in favor of the fee contracted for, and the circuit court decreed in support of the contract. Let us enquire who fixed the fee of $5,000 as a proper fee in the evidence?
The answer is, Emily E. Thomas, the appellant, Eeed Thomas, Callie Thomas, Charlotte Thomas, her adult children, who, like herself, had agreed to and had signed the contract, as did her husband also.
M. K. Estes, the trustee, said that Emily Thomas told him she thought the contract was for $5,000.
I do not consider that there"was any ground to be found in the evidence to justify the upsetting of this fair and just agreement. Numerous- witnesses of the finest intelligence and highest character, fully conversant with all the circumstances, say-that the contract is just and fair, and should be enforced, while Emily Thomas and her adult children, after executing the contract in the fullest light of explanation, deny their responsibility when called on to comply with their just agreement, and fix the fee at $5,000, and this is all the evidence to assail the contract or to establish $5,000 the proper amount of the fee, so I dissent upon the merits as well as upon the law of the case as set forth in the opinion of the majority.
Decree reversed.