vey the premises. At that juncture, and on or about November 24, 1914, Mary S. F. Sisco came in contact with the defendant, David H. Bilder, with a view to retain him in her difficulty. He advised with her and made an examination of the record. From his examination he discovered that the lis pendens had been filed before the bill, with the result that, although more than three months had elapsed since the making of the decree, there was no question but that an appeal could be taken. Bilder advised an appeal. Her previous counsel had advised in writing against it. On November 30, 1914, an order of substitution was made. Bilder had received $100 on November 22, 1914, for services in the contempt matter. On December 9, 1914, an agreement was made between Mrs. Sisco and Bilder & Bilder, attorneys, of which firm David H. Bilder was a member, providing substantially that Bilder & Bilder would take such proceedings as might seem necessary or proper for the protection of the rights of Mrs. Sisco in the Court of Errors and Appeals, also in the contempt proceedings and in an ejectment suit then pending in the Supreme Court; that, as compensation, Bilder & Bilder should be entitled to receive a sum equal to one-third of any and all recovery which Mrs. Sisco or her husband should be awarded or receive in the premises, either by suit, settlement, compromise, or otherwise; and that, in the event that the deeds of conveyance made by Mary Soper to Mrs. Sisco should not be set aside or declared invalid, then that Bilder & Bilder should receive onethird of the value of the lands conveyed by Mary Soper to Mrs. Sisco, said one-third to be computed upon the value of said land as the same should be at the time of the said determination. In case of nonsuccess, Bilder & Bilder were to receive nothing. The disbursements for printing on appeal and the deposit required upon appeal were to be paid by Mrs. Sisco and her husband. The agreement is acknowledged, and testimony given by the master before whom it was acknowledged is to the effect that the agreement was read over and explained to Mrs. Sisco and her husband before they signed and acknowledged it. Counsel then prepared the very voluminous petition of appeal that was filed, and also briefs. His original brief and brief in reply consists approximately of 60 pages; the brief of the respondent of 70 pages. The briefs indicate upon their face work of the highest standard. On March 23, 1915, the cause was submitted to the Court of Errors and Appeals on briefs. It was decided on November 15, 1915, in favor of Mrs. Sisco, in an opinion delivered by Mr. Justice Trenchard (Soper v. Cisco, 85 N. J. Eq. 165, 95 Atl. 1016). The opinion covers some 10 pages of the report. Nine judges voted to reverse, five to affirm. Whatever my personal opinion may be as to the apparent equity of Mrs. Sisco, at least for reimbursement for moneys which she had advanced upon the faith of the deed, the conclusions of the advisory master and the opinion of the Court of Errors and Appeals, and the fact that five judges dissented, indicates beyond cavil that the case was most difficult, and that Mrs. Sisco when she came to Bilder & Bilder was in a desperate position. This very fact, of course, increased the burden of the duty upon the defendant toward the client. The necessity could not be availed of to get from her an unconscionable contract. The situation demanded the very highest quality of legal ability and most assiduous application, and it received both to a marked degree. Upon learning of the determination of the Court of Errors and Appeals, the Siscos telegraphed counsel congratulating them. On December 4, 1915, Mrs. Sisco and her husband, in pursuance of the agreement of settlement, and to recompense counsel, made the deed now in question. The master before whom this deed was executed testifies that Mrs. Sisco understood fully what she was doing. On March 8, 1916, Mrs. Sisco executed her last will and testament, naming David H. Bilder as executor, and the present complainant residuary legatee and devisee. On April 5, 1916, and while Mrs. Sisco was confined to the hospital at Passaic during her last illness, the deed was recorded. On May 31, 1916, she died, and on August 4, 1916, the present bill was filed. After the determination of the Court of Errors and Appeals, there were further hearings before the advisory master for the purpose of fixing the amount which should be paid by the Siscos for the support and maintenance of the complainant, Soper, which she should have previously received, and also for future support. There were at least two formal hearings before the advisory master. Most excellent briefs were submitted. The result was that the amount asked by the complainants, which was in the neighborhood, I think, of $4,000, was reduced to approximately $1,800, and the amount of future support asked for, to wit, $25, was reduced to $10. Mrs. Soper then died. An order embodying the conclusions of the advisory master was entered after the death of Mrs. Sisco, without reviving the cause, nunc pro tunc, as of the day of the argument. A copy of the contingent agreement was found among the papers of Mrs. Sisco. There is no proof that at the time of the making of the contract for compensation Mrs. Sisco was under any physical or mental disability. Indeed, the complainant derives his title through a will made three months after the deed was executed. The case is absolutely barren of proof that any misrepresentations as to her rights or as to the value of the property were made to her. It is conceded by the defendant that the property is worth in the neighborhood of $12,000. It is claimed by the complainant, and he is supported by the testimony of one witness, that it is worth in the neighborhood of $18,000. Two witnesses for the defendant substantiate the $12,000 valuation. It is probable that the real value lies somewhere between the two extremes. But, in my view of the case, it is not necessary for me to determine precisely its actual valThe property is unimproved, in the small borough of Lodi. There is no evidence of a present demand for it. It will have to be improved, filled in, before it can be made of use. The amount which may finally be received for it is highly problematical. ue. [1] Contracts which provide that an attorney should receive a certain proportion of the proceeds of litigation where, as in this case, the amount to be received cannot be approximated, and in case of failure should receive nothing, are to be most strongly, in my opinion, condemned, and I think that it is immaterial whether the agreement was made before or after the technical relation of attorney and client began, notwithstanding the inference that might be drawn to the contrary from the language of Vice Chancellor Pitney in Adams v. Schmitt, 68 N. J. Eq. at page 178, 60 Atl. 345. The evils to which such contracts lead far outweigh any advantage which there may be in permitting them. The moment an attorney enters into a contract of this kind he ceases to be in a position where it can be said that he can in all cases properly advise his client. I will point out but one example. If a proposition of settlement is made of a doubtful claim, it may be highly to the interest of the client to compromise. The attorney, on the other hand, gambling not with his own property, but merely interested to the extent of his services, may think it highly desirable that the cause should be prosecuted with a view to getting a larger amount for his services, and, of Lynde v. Lynde, 64 N. J. Eq. at page 749, 52 Atl. 694, 58 L. R. A. 471, 97 Am. St. Rep. 692; Brown v. Buckley, 14 N. J. Eq. at page 458; Crocheron v. Savage, 75 N. J. Eq. 598, 73 Atl. 33, 23 L. R. A. (N. S.) 679; Porter v. Bergen, 54 N. J. Eq. 405, 34 Atl. 1067; Wagner v. Phillips, 78 N. J. Eq. 33, 78 Atl. 806; Johnston v. Reilly, 68 N. J. Eq. at page 150, 59 Atl. 1044-it seems to me that, upon such an agreement being called in question by a client, it will be sustained only to the extent of securing to the attorney reasonable compensation under all the circumstances of the case, which is but another way of saying that the contract under such circumstances will be entirely disregarded. In computing what is reasonable compensation, many elements must be taken into account. There is no yardstick by which the value of legal services can be measured; no rate per diem or percentages can be employed with justice to both parties. The legal ability of the attorney, the amount of work which he does, the skill with which he does it, and, of much importance, the amount involved, and the success of his efforts. There may also be considered the contingency that, in case he is unsuccessful, he will receive nothing, and the fact, if it be a fact, that the fund was created through the efforts of the attorney. I have already commented upon the circumstances surrounding this particular case. As I construe the contract, and the deed must be considered as merely carrying into effect the provisions of the contract under it, if it be valid, the attorney is entitled to onethird the value of the property after deducting all the costs of litigation, approximating $600 or $700 which have been paid by Mrs. creed to pay to Mrs. Soper, and, if Mrs. Sisco, the amount which Mrs. Sisco was de Soper had lived, an amount equal to the present value of the future payments which Mrs. Sisco had to make for the support and maintenance of Mrs. Soper; for it is this net amount which represents the net avails to Mrs. Sisco. I think the intent was that the one-third should be of the net avails. The some future time when this property is sold may receive something in the neighborhood of between $3,000 and $3,500 if the property be worth $12,000. That he takes his chance on receiving it in this method must also enter into consideration. as in some cases which have come to my knowledge, the client may finally lose his entire property, which he cannot afford to do, and the attorney merely the value of his services, which presumedly he can afford to lose else he never would have entered into such a contract. On the contrary, it may be highly desirable from the client's standpoint that the cause should be prosecuted to deter-result will be, therefore, that the attorney at mination, and the attorney may think it advisable from his standpoint, in order to immediately reap the reward of his contract, to settle. I am not intimating that there was any such condition in this case. What I say is that the possibility of such a situation arising is such that, by entering into such a contract, the attorney puts himself in a position where he can no longer act as he should, solely with a view to the interest of his client. There is no one thing that has more strongly tended to get the bar in dis- | repute with the general public than this class of contracts. Such contracts, however, have been sustained by the courts of this state. Hassell v. Van Houten, 39 N. J. Eq. 105, at page 109; Wilson v. Seeber, 72 N. J. Eq. 523, I am not obliged, I think, to determine what action this court would take upon such a contract if it were questioned by the client. Clients have a right to make contracts with their attorneys; they have a right to make gifts to their attorneys. Originally compensation of counsel was by way of gift. Such contracts will be scrutinized with great care, but, if it fairly appears that the client voluntarily and intentionally made such a contract, there is no reason why it all except the client, unless peculiar circumstances exist. (87 N. J. Eq. 413) Ex parte FLYNN. (No. 42/138.) (Court of Chancery of New Jersey. April 2, 1917.) 1. HABEAS CORPUS 99(1) CUSTODY OF CHILD-SCOPE. fant, the limited habeas corpus jurisdiction of On application to secure custody of an inthe Justices of the Supreme Court is not invoked, but it is the broad general equity jurisdiction over the custody of the person of infants which the Chancellor exercises as parens patriæ. [Ed. Note.-For other cases, see Habeas Cor 2. HABEAS CORPUS 99(8) CUSTODY OF CHILD-RIGHTS OF STEP-PARENTS. A stepfather or a stepmother as such has no right to the custody of a stepchild. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 84.] 3. HABEAS CORPUS 99(8) CUSTODY OF [2] Mrs. Sisco had the absolute power to do what she did do. Is it to be presumed that, were she alive now, she would repudiate? In the face of the circumstances here I existing, I would have to find that the amount which the attorney will receive is so far in excess of any reasonable amount which he could demand that it is to be conclusively presumed that, had the client understood the circumstances, she never would have made the contract, that it results in such an over-pus, Cent. Dig. § 84.] reaching as that she cannot be presumed to have intended it, or that there was some fraud, or that she would not have made it except induced by her precarious condition coupled with her inability to pay cash, or that, had she been able to pay cash, she would have preferred to pay reasonable compensation rather than to enter into such a contract. I do not think I am justified in so finding. That Mrs. Sisco fully understood the effect of what she was doing I think is demonstrated by the testimony. She ratified the contract more than a year after its making by delivering the deed. She reaffirmed her confidence in Bilder and her acquiescence in what had been done by, three months after the making of the deed, making her will in which she made Bilder her executor. She kept the contract among her papers, indicating clearly that there was no conceal-pus, Cent. Dig. § 84.] ment, and that she knew what had been 5. HABEAS CORPUS CHILD-PERSONS IN LOCO PARENTIS. done. Where the father of an infant remarried, and on his death without a will the mother retained custody of the child, she was left in loco pato the custody of the child were supreme. rentis, and her rights, nothing further appearing, [3] Under the circumstances, I do not think that it lies in the mouth of the present complainant, who obtained his title by gift of his sister, to question this completely executed transaction. I do not want to be understood as holding that the court will not in any case after the death of a client examine such contracts. If there was any evidence indicating that during her life Mrs. Sisco had expressed dissatisfaction, or that there was the least concealment or overreaching, and if there was not the positive evidence of ratification, the case might be different. Each case must be determined on its own facts. Counsel for the complainant suggests a compensation of $500 would be adequate in a case of this kind. I think not, even if the client was able and willing to pay cash. The services were worth much more than any such sum, and I do not think that the difference between their fair value and the amount that the attorney is to receive is so great as to practically create the presumption of fraud. CHILD-PERSONS IN LOCO PARENTIS. Persons standing in loco parentis to an infant have a right of custody as against strangers. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 84.] 4. HABEAS CORPUS 99(8) CUSTODY OF CHILD-PERSONS IN Loco PARENTIS. Only a parent or a guardian can establish a statutory right of custody and take the infant loco parentis, and step-parents, uncles, aunts, and other collateral relatives have no right as such as against persons in loco parentis. [Ed. Note. For other cases, see Habeas Cor from the actual custodian who in fact stands in 99(8) CUSTODY OF [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 84.] FATHER. After the father's death, leaving the stepmother in loco parentis to his infant child, in the absence of showing that the stepmother, a Protestant, was proselytizing the child away from the Roman Catholic faith, the court in awarding custody of the child to such stepmother would merely make reservation for a change of custody should it be disclosed that the stepmother was not continuing the child's education according to the Roman Catholic faith. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 84.] Habeas corpus on the application of Katherine Flynn to secure custody of Walter Flynn, a minor. Writ awarded, and custody granted. I will advise a decree declining to set the deed aside, but the pleadings may be so framed as to permit a decree defining the rights of the attorney under the deed as I Joseph Anderson, Sr., of Jersey City, for have herein expressed. No costs to either petitioner. John Warren, of Jersey City, for side. respondents. STEVENSON, V. C. The object of this | care and perhaps almost the affection which proceeding is to determine the custody of an they would have received if this worthy infant male child, 6 years of age, domiciled woman had in fact been their mother. It is in New Jersey. The petitioner, Katherine also important to note that the religious Flynn, is the child's stepmother-the second education of these children was continued in wife of his deceased father. One of the reaccordance with the father's wish, and with spondents, Mary Clancy, is the infant's de- the acquiescence of the stepmother, in Roman ceased father's sister, and the other respond- Catholic schools, and that they were being ent, James Clancy, is her husband. A writ brought up as Roman Catholics in all reof habeas corpus was issued in accordance spects. with the prayer of the petition, and the infant was produced before the court upon the return of the writ. No objection has been made to the form of the writ. [1] 1. It is not the limited jurisdiction upon habeas corpus which is exercised by the Justices of the Supreme Court as well as the Chancellor which is invoked in this case. The petition is not directed toward freeing this little child from imprisonment. The pleadings set forth in detail the claims of the contending parties to the custody of the infant, and the proofs have been directed to ward sustaining and defeating respectively each of these hostile claims. The broad jurisdiction which is invoked is the "general equity jurisdiction over the custody of the person of infants which the Chancellor exercises as parens patriæ." In re Barry, 61 N. J. Eq. 135, 137, 47 Atl. 1052, 1053. The nature and extent of the jurisdiction of the Court of Chancery in this case has been expounded in a line of cases beginning with the leading case of Baird v. Baird, 19 N. J. Eq. 481 (Court of Errors and Appeals, 1868). See, also, Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726 (Court of Errors and Appeals, 1869); Rossell v. Rossell, 64 N. J. Eq. 21, 22, 53 Atl. 821 (Magie, Ch., 1903); Cunningham's Case, 61 N. J. Eq. 454, 48 Atl. 391 (Stevens, V. C., 1901); English v. English, 32 N. J. Eq. 738, 740 (Court of Errors and Appeals, 1880). Mr. Flynn, who was a railroad brakeman, seems to have made no will and left no property except life insurance for his widow's benefit. At or immediately after the funeral services at Mr. Flynn's grave, the infant, Walter J. Flynn, who is the subject of this contest, was carried off by the respondents without the knowledge or consent of the petitioner. When she turned from the grave she found that one of her children had disappeared. It may be added that prior to the marriage Mr. Flynn had supported his children in different places, and the child Walter had been placed as a boarder with his aunt, Mrs. | Clancy, one of the respondents. The Clancys, who are Roman Catholics, have no child of their own, but have an adopted daughter about 10 or 12 years of age. The little boy Walter exhibits affectionate regard for his aunt as well as for his stepmother. Both of the parties litigating for the custody of this child are entirely respectable and competent to give the child the care and education and chance in life which a son of Mr. Flynn would be naturally expected to receive. Mr. Clancy is a motorman and has some substantial equity in the house in which he lives, but a comparison of the respective faculties of the two parties and also of the conditions which make for the well-being of this child in the two homes is somewhat favorable to the petitioner. 3. Each of these parties has made an ef2. John J. Flynn, the father of the infant, fort so far unsuccessful to procure the legal was married to the petitioner, a spinster adoption of this child. So far as appears about 48 years of age, and somewhat older in the case no application has been made by than himself, on December 15, 1915. Mr. either party to the surrogate or orphans' Flynn then had three children by his first court of Hudson county for the appointment wife, aged respectively 11, 6, and 4 years. of a guardian. We have presented here the Mr. Flynn was a Roman Catholic, as also his somewhat unusual case of a contest over the first wife had been, and the evidence in- custody of an infant of tender years where dicates that his attachment to his church no right of a parent or a guardian is inwas not merely nominal. The petitioner was volved. In the case of Violet Nevin, [1891] a Protestant, belonging to the Lutheran com-2 Ch. 299, substantially the same state of munion. The union appears to have been facts was presented to the court, but the aphappy, and was certainly advantageous to plication was for the appointment of guardMr. Flynn because his health soon failed, ians and for directions in regard to the reand for some period prior to his death, which ligious education of the infant. Lord Lindoccurred on July 20, 1916, he appears to have ley stated (page 309) that the case was "pebeen supported by his second wife. Mr. culiar in this that there was no father, no Flynn, and this is the matter of consequence, mother, no guardian, no direction by the brought his children to the home of his sec father as to the religious education of the ond wife, where she was residing at and be- child." In the case now before this court we fore the time of the marriage, and the chil- have the same situation except that there dren became attached to the petitioner, is not and could not be any question of genwhom they called mother, and there is noth-eral guardianship presented to the considera sey. What is before the court is an award |parently with abundant opportunity to make of custody in recognition of the right of a a will, and slowly approaching death, died parent or person standing in loco parentis to without appointing any guardian, and thus an infant child of tender years, or the denial of such award from considerations relating to the welfare and best interests of the infant or the presumed wishes of his deceased parents. [2] It is well settled that a stepfather or a stepmother as such has no right to the custody of a stepchild. [3] It is also settled that persons standing in loco parentis to an infant have a right of custody as against strangers. 29 Cyc. 1621, and cases cited; Richards v. Collins, supra, 45 N. J. Eq. 286, 287, 17 Atl. 831, 14 Am. St. Rep. 726; In re Williams, 77 N. J. Eq. 478, 481, 77 Atl. 350, 79 Atl. 686 (Howell, V. C., 1910). In Richards v. Collins Mr. Justice Knapp, in delivering the opinion of the Court of Errors and Appeals, stated: "Doubtless it is the strict legal right of parents and those standing in loco parentis to have the custody of their infant children as against strangers. This right will control the judgment of the court, unless circumstances of weight and importance connected with the welfare of the child exist to overbear such strict legal right." left the petitioner, his widow, as the sole custodian of this child, holding the rights and discharging the duties of its mother. Upon Mr. Flynn's death the petitioner as stepmother, as we have seen, acquired no right of custody, but she stood firmly in loco parentis, in which place her deceased husband, the father of the child, had placed her. So far there does not, in my opinion, appear to be a shadow of support to the right to the custody of this infant which his aunt, Mrs. Clancy, sets up against the petitioner and endeavored to enforce by a clandestine seizure. 4. The question now arises whether the welfare of this child, or any rule of law, makes it the duty of the Chancellor as parens patriæ to take the custody of this child from the petitioner who otherwise is entitled to such custody, and award the same to this stranger, the infant's aunt, in order to se cure the infant's education in the Roman Catholic religion. No English or American authority has been cited, and I have found none which sustains such a proposition. En hand, and which I think are all later than the settlement of this country, the establishment of the New Jersey Court of Chancery, and even later than the Declaration of Independence, indicate more or less distinctly that if this cause were before an English Court of Chancery the custody of the infant might be awarded to the petitioner, while an order would be made that the child be brought up in the Roman Catholic faith. Whether the English court would exercise any such power except as an incident to the appointment of a guardian is a question which I have not undertaken to investigate. [4] Only a parent or guardian can establish cases which bear upon the matter in lish a superior right of custody and take the infant from the actual custodian who in fact stands in loco parentis. Step-parents, uncles, aunts, and other collateral relatives have no right as such relatives to take the custody of an infant from the person standing in loco parentis. If they wish to acquire a superior right of custody they must get an appointment as general guardian of person and property, which appointment the Court of Chancery of New Jersey cannot make. The guardian takes the custody from the stepparent who has stood in loco parentis perhaps continuously from the birth of the child, where no question of unfitness arises. In re Camella Grielo, 17 N. J. Law J. 11 (1893). In this case it must be noted that Mr. Justice Depue was exercising the ordinary jurisdiction of a law judge on habeas corpus, and could not exercise the jurisdiction of the Chancellor as parens patriæ. [6] 5. The English rule is settled "that, except under special circumstances, the child must be brought up in the father's religion." Simpson on the Law of Infants (2d Ed.) p. 129; Talbot v. Schrewsbury, 4 My. & Cr. 672; Hawksworth v. Hawksworth, 6 Ch. App. 538 (1871); In re Violet Nevin, supra. In the The propositions stated above of course are lifetime of the father, he has the absolute general rules or principles which are sub-right to determine the religious education ject to exceptions and modifications in par- of his children. In re Apgar-Ellis, 10 Ch. ticular cases, as, for instance, where the Div. 49; In re Scanlan, 40 Ch. Div. 200, 207. parent or guardian has abandoned or waived his right to custody, or when such right is made subject to considerations relating to the welfare of the infant. [5] In the case at bar the father, upon his marriage to the petitioner, took the infant from the home of Mrs. Clancy and placed him under the care and control of his wife, the petitioner, and he must have known that the relation of mother and child would be es tablished, and must have seen that such relation in fact was established between the petitioner and this infant. The father ap In the Hawksworth Case a Roman Catholic died leaving a widow who was a Protestant, and an infant daughter 6 months old. The daughter remained with her mother, and was brought up as a Protestant until she was 82 years old. The Court of Appeals, affirming an order of Vice Chancellor Wickens, directed that the child should be reared in the Catholic faith. Lord James (page 542) states the law of England as follows: "The rule of the court is that the court, or any persons who have the guardianship of a child after the father's death, should have sa |