child in his care, and about to take her out of the state and jurisdiction of the court. and, on the other hand, appellee was a suitable person, able and prepared to furnish both a good home and proper training, as she claimed in her petition, the duty of the court to make the order in question was plain. We are unable to allow the contention that under section 1058, supra, jurisdiction over minor children, upon the divorcement of the parents, can only be retained by an express reservation of such jurisdiction in the final decree, and in all subsequent modification of the judgment, by the words "until the further order of the court," or their equivalent. Under the view we have taken of the law, the words "until the further order of the court" add no legal support to the subsequent jurisdiction of the court to change the custody of such children, if their welfare demands it. Section 1058 imposes upon the court, in decreeing a divorce, the duty to make provision for the guardianship, custody, support, and education of the minor children. This duty is incumbent, irrespective of the issues or wishes of the parents, and springs in large measure from the public interest in the proper training and education of the children. In de termining the question, the law gives the court a free hand to award the custody to either parent, or deny it to both, according to their fitness and ability at the time of the decision. When called upon to act in so important a matter, it is the duty of the court to fully inform itself as to all matters affecting the fitness of the parents, of its own motion if need be, and when it has reached its judgment it will be conclusively presumed that all the known facts touching the subject were fully before the court and received just consideration. The judgment thus arrived at is a final judgment upon the facts as they existed at the time, appealable, but otherwise unassailable as other judgments. Dubois v. Johnson, 96 Ind. 6; Joab v. Sheets, 99 Ind. 328, 332; Leming v. Sale, 128 Ind. 317, 27 N. E. 619; Bish. Mar. & Div. 1188. The addition of the words "until the further order of the court" does not change the legal force and effect of the judgment pronounced. If the facts have been adjudicated, and the status of children fixed thereby, such adjudication concludes both the court and the parties on the facts involved, and is in every sense final, and may be appealed from, notwithstanding a reservation by the court of the power to change it. To give the words the force contended for would be to hold that by such an order the court has only temporarily disposed of the question and holds in abeyance the final judgment for further consideration. This would prevent appeals and work hardships to many litigants.

Furthermore, a court carnot rid itself of duty and jurisdiction by an announcement in a decree. Since the organization of our

state government it has been the established policy of the law to regard the minor children of divorced parents as wards of the court in the same general way that minor children of deceased parents are regarded. The nurture and proper training of such children are subjects of vital interest to the state, as well as to the children themselves, and when the family has thus been broken up, and the children taken t other homes, and exposed to the mutual animosities and jealousies of their parents, and their happiness and usefulness as citizens endangered, the court granting the divorce must be deemed to have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders and modifications thereof, with respect to their care, custody, and control, as are deemed expedient; the interests of society and wel. fare of the children, in all such inquiries, being the paramount and controlling consideration. Bish. Mar. & Div. 1186-1188; Neil v. Neil, 38 Ohio St. 558; Dubois v. Johnson, 96 Ind. 6; Leibold v. Leibold (Ind. Sup.) 62 N. E. 627. It is said in the Neil Case that "the jurisdiction exercised in divorce cases with respect to children is continuing, and the power to modify the order in that respect may be exercised, during the minority of the children, whenever their welfare requires such modification. A reservation in the decree of authority to so modify is not essential to the exercise of such power." The ruling in Sullivan v. Learned, 49 Ind. 252, made by a divided court,-three to two,-does not accord with out view of the spirit of our decisions, or with our view of the legislative intent, in its failure to carry into the statute of 1852, which is still in force, the express provision of former statutes that courts, in decreeing divorces, shall make such decree for the care, etc., of minor children as seems most expedient and beneficial to the children, "and from time to time thereafter may revise and alter such decree as the benefit of the children require." The statute of 1852 expressly confers upon the court granting the divorce jurisdiction over the nurture, custody, and training of the minor children. This jurisdiction applies to the state of minority, and may be exercised in the same case at any time within that period. The fact that the court has rendered judgment upon one state of facts, and disposed of the children as their best interests then require, does not impair the power of the court to decide upon another state of facts, subsequently arising, which affect their welfare. Bryan v. Lyons, 104 Ind. 228, 234, 3 N. E. 880, 54 Am. Rep. 309. The primary object of the law in interfering with the natural rights of parents to the society of their offspring is to secure to the latter, in their tender, impressionable years, those influences which count for happiness and useful citizenship; and it seems unreasonable to say that, with

this object in view, the court, having once fixed their status, and correctly and beneficially under the facts as they then existed, shall have no power to subsequently change the order to meet the changed conditions, though a continuance of the old is manifectly ruinous to the children. The death of the custodian, the failure of health and property, the change of habits and character, removals, and all of those things which enter into the fitness or unfitness of the custodian, are liable to change, and, without the power of modification of the order with respect to custody, very great injustice may be done to both parents and children.

We therefore hold that a reservation of power in the dissolution of marriage to modify the decree with respect to the custody of minor children is not essential to a continuance of that power during minority, and, in so far as the ruling in Sullivan v. Learned, supra, is in conflict with this view, the same is overruled. We find no error in the record. Judgment affirmed.

(159 Ind. 242)

DAVIS et al. v. CHASE et al.* (Supreme Court of Indiana. May 27, 1902.) ATTORNEY AND CLIENT-CONTRACT OF EMPLOYMENT-VALIDITY FRAUDULENT CONVEYANCES-ACTION TO SET ASIDE-PARTIES -PLEADING-FINANCIAL CONDITION-COUNTS ON SPECIAL CONTRACT-RECOVERY ON IMPLIED CONTRACT.

1. A contract compensating an attorney for his services by a percentage of the recovery either by suit or compromise, but providing that no settlement should be made unless he "is present and directs" it, does not merely require that the attorney shall be present to advise his client, but limits the latter's control over the litigation, and hence is void as against public policy.

2. Under paragraphs of a complaint counting on a special contract, no recovery can be had on an implied contract.

3. On an averment in a complaint by a creditor to set aside a fraudulent conveyance that third persons named claimed some interest in or lien on the real estate which plaintiff was seeking to reach in the hands of the debtor's wife, such third persons were properly made defendants; and there was no error in sustaining a demurrer to a plea in abatement to their cross complaint, setting up that at the date of the transaction and at the commencement of the original action the original defendants resided in another county, and that by collusion between the original plaintiff and the cross complainants the latter were made parties to the action.

4. A complaint to set aside a fraudulent conveyance which only alleged, as to the grantor's financial condition at the time of the filing of the complaint, that he had no property subject to execution "of which these plaintiffs have any knowledge," was insufficient.

Appeal from circuit court, White county; Truman F. Palmer, Judge.

Action by George P. Chase against Elizabeth Davis and others. A judgment was rendered in favor of plaintiff against defendants Elizabeth and John Davis, and also in favor of defendants William and Joseph Kreider on a cross complaint against defendFor modification of mandate, see 64 N. E. 853.

ants Davis, and the latter appeal. Transferred from appellate court, under Acts 1901, p. 590 (section 1337u, Burns' Rev. St. 1901). Reversed in part, and affirmed in part.

De Witt C. Justice, for appellants. C. E. Spencer and M. A. Ryan, for appellees.

GILLETT, J. The appellee Chase filed in the court below his complaint in three paragraphs, founded upon a written contract executed by himself and the appellant John Davis; and he also sought by said action to subject to the payment of his demand a tract of real estate that it was alleged said John had fraudulently caused to be conveyed to his wife, the appellant Elizabeth Davis. Said first-mentioned contract is of the following tenor: "This agreement, made and entered into the day and year last written, by and between John D. Davis, party of the first part, and George P. Chase, party of the second part, witnesseth: Whereas, John D. Davis has this day employed George P. Chase, party of the second part, to institute and prosecute a suit or cause of action for the purpose of obtaining his share of his father John Davis' estate, and the said John D. Davis hereby authorizes and empowers the said George P. Chase to recover said claim, either by suit or compromise, but that said George P. Chase shall not accept any compromise or settlement unless the same is satisfactory to the said John D. Davis: Now, therefore, in consideration of the said George P. Chase performing said services, the said John D. Davis agrees to pay to the said George P. Chase, as compensation for his services, a sum of money equal to 50 per cent. of any amount that he may recover, either by way of suit or compromise, and the said John D. Davis hereby expressly agrees not to enter into any compromise or accept any sum of money in settlement of said claim unless said George P. Chase is present and directs said settlement. Witness our hands this 23rd day of February, 1898. [Signed] J. D. Davis. George P. Chase." Mr. Greenhood, in his work on Public Policy, at page 474, says: "A contract by which the control of the party in interest over litigation carried on in his behalf is limited is void." This view finds full support in the cases. In Lewis v. Lewis' Adm'x, 15 Ohio, 715, the court said: "A contract with an attorney to prosecute a suit containing a stipulation that the party should not have the privilege to settle or discontinue it without the assent of the attorney would be so much against good policy that the court would not enforce it." Railroad Co. v. Ackley, 171 Ill. 100, 112, 49 N. E. 222, 226, 44 L. R. A. 177, the supreme court of Illinois, speaking by Phillips, C. J., said: "The second proposition to be determined is, is a contract by which the person in whose name the action is brought, and to whom it belongs, restricted from

In

compromising or settling such claim because of a contract to that effect? In other words, is such a contract valid and binding? When a cause of action exists, its nature and amount are always involved in uncertainty, and a defendant has a right to buy his peace. The plaintiff has a right to compromise and avoid the anxiety resulting from a cause pending, to which he is a party. Any contract whereby a client is prevented from settling or discontinuing his suit is void, as such an agreement would foster and encourage litigation."

The supreme

court of Arkansas has thus expressed itself upon the subject: "It is a wise public policy to allow the parties to a lawsuit, or to disputes that have not even progressed to the proportion and dignity of a lawsuit, to settle their differences without hindrance from disinterested parties. Parties should be permitted to beg or 'buy their peace at any time.' It would be difficult to estimate the monstrously unjust consequences that might result to parties willing and ready to settle a demand of this kind, if it lay in the power of an attorney to impede or control such settlement." Davis v. Webber, 66 Ark. 190, 198, 49 S. W. 822, 825, 45 L. R. A. 196, 74 Am. St. Rep. 81. "The law," said Judge Dillon in deciding the case of Ellwood v. Wilson, 21 Iowa, 523, "encourages the amicable adjustment of disputes, and a construction of a contract which would operate to prevent the client from settling will not be favored." To the same effect, Boardman v. Thompson, 25 Iowa, 487.

Counsel for appellee Chase do not attempt to dispute the correctness of the doctrine that the above authorities announce, but they seek to parry its force by contending that the agreement of the client not to compromise only required that the attorney should be present to advise the client in the effecting of a settlement. The verb "directs" ordinarily implies a pointing out with authority, or directing as a superior. If that is not the meaning of the word in the contract under consideration,-and if it means only to guide or advise,-we do not understand why the client was required to "expressly" agree that in the event of a compromise his attorney should be present to guide or advise him. And it is still more difficult to understand why, if the settlement took the course that the contract contemplated it might take,-of an acceptance of a sum of money by the client in settlement of the claim,-it was so important to himself to have his attorney present to advise him that he must needs "expressly" bind himself in advance that he would not settle unless his attorney (and that particular attorney) was present to advise about such a comparatively simple matter as the receiving of a sum of money, and the execution of a receipt or a quitclaim deed. The theory of counsel is weak. It is evident that the purpose of the provision was to enable the

attorney to prevent the client from making a settlement or compromise that the attor ney might regard as disadvantageous to himself. It is plain that the provision, when construed according to the evident intent of the parties, is against public policy, and that there can be no recovery upon the contract sued on. As said in Davis v. Webber, supra: "This clause was fatal to the entire contract. It is not severable from it. It seems to have been an inducement for entering upon the contract. It is impossible for us to say that the parties would have entered upon the contract at all without this clause." The demurrer of appellants to each of the paragraphs of complaint of appellee Chase should have been sustained.

Counsel for said appellee are in serious error in asserting that under paragraphs of complaint counting on a special contract there may be a recovery on an implied contract. Board v. Gibson (at this term) 63 N. E. 982.

The appellees Kreider were judgment creditors of appellant John Davis, and were made parties defendant to the cause by appellee Chase after the case reached the court below on change of venue. Said appellees Kreider entered their voluntary appearance to the action, and filed a cross complaint in which they sought to recover on their judg ment, as a cause of action, against appellant John Davis, and to have said land subjected to the payment of their judgment. The appellants appeared specially to the cross action, and filed a plea to the jurisdiction of the White circuit court, alleging that at the date of the commencement of the cross action and at the date of the commencement of the original action they were residents of Carroll county, Ind., and that by collusion between the original plaintiff and said cross complainants the latter had been made parties to the action for the purpose of enabling them to file said cross complaint. As the complaint of appellee Chase alleged that appellees Kreider were claiming some interest in or lien on the real estate which Chase was seeking to reach in the hands of Elizabeth Davis, we think that they were properly made defendants, to the end that their rights in the land might be settled before the court ordered a sale thereof. There might have been what the plea, by way of legal conclusion, styles "collusion" for the purpose of enabling the appellees Kreider to file a cross complaint, and yet the averment does not exclude the idea that they were necessary or proper parties to the original action. There was no error in sustaining a demurrer to the plea in abatement. Upon the sustaining of such demurrer, appellants each filed a demurrer to the cross complaint. These demurrers were together overruled. The ruling was proper as to appellant John, but improper as to appellant Elizabeth. The cross complaint does not contain any averment as to the financial condition of said

John Davis at the time of the filing of the cross complaint, aside from the allegation that he had no property subject to execution "of which these plaintiffs have any knowledge." This was insufficient.

The judgment of appellees Kreider against appellant John Davis is affirmed. The judgment in favor of appellee Chase is reversed, with an instruction to the court below to sustain the demurrers of each appellant to each of said appellee's paragraphs of complaint; and the judgment as against appellant Elizabeth, based on the cross complaint of appellees Kreider, is also reversed, with an instruction to sustain her demurrer to said cross complaint.

(158 Ind. 642)

PEASE v. CHRISTMAN. (Supreme Court of Indiana. May 27, 1902.) ADMINISTRATION - FUNERAL EXPENSES BY WIDOW SUBRO

MONUMENT-PAYMENT

GATION-APPEAL-RECORD-PRESUMPTION.

1. On appeal from a judgment in an action allowing a widow's claim against the estate for erecting a monument at her husband's grave, tried on a statement of facts which is silent as to the value or solvency of the estate, or the suitableness of the monument to the conditions, the presumption as to such facts is in favor of the trial court's action.

2. The expense of erecting a suitable monument over the grave of a deceased is to be classed among the funeral expenses.

3. Where a widow, before the appointment of an administrator, incurs the expense of erecting a suitable monument over the grave of her husband, she is entitled to be subrogated to the rights of the dealer who erected the monument, and may recover therefor against the adminis

trator.

signs as error (1) that the complaint does not state facts sufficient; (2) that the court erred in overruling his motion for a new trial.

Counsel for appellant insists that under the facts the decision of the court in allowing the claim cannot be sustained. The agreed statement of the parties discloses the following facts: John Christman died intestate in La Porte county, Ind., on November 2, 1896, leaving as his heirs at law appellee, his widow, and five children, each over the age of 21 years, consisting of three sons and two married daughters. No administration was had upon his estate until November 17, 1898, on which date appellant was appointed and qualified as the administrator thereof. After the death of said Christman, and before the appointment of the said administrator, his widow, Emma Christman, appellee herein, with the knowledge and consent of the three sons, purchased and procured from a certain dealer a monument, at the price of $152, for her deceased husband, and procured the same to be erected at his grave. The price of the monument was charged to her by the dealer of whom it was obtained, and subsequently was paid for by her. After the appointment of appellant as the administrator of her husband's estate, she filed her claim against the same to be reimbursed therefrom for the money so expended and paid by her. The statement of facts further discloses that at the time the monument was ordered there was "either an express or implied promise" by the three sons to contribute to the payment thereof, but, so far as the two married daughters were concerned, there was no agreement on their part to contribute to its payment. Counsel for appellant contend that under the facts the holding of this court in the

Action by Emma Christman against Seth M. Pease. From a judgment for plaintiff, defendant appeals. Transferred to supreme court under act approved March 13, 1901. Affirmed.

Fred R. Liddell, for appellant. James O'Brien and R. B. Oglesbee, for appellee.

JORDAN, J. Appellee in the lower court sought to be reimbursed out of the estate of her deceased husband, to the amount of $152, for money laid out and expended by her in the purchase of a suitable monument erected over his grave. The case was tried upon an agreed statement of facts, under which the court was requested to decide whether a claim for a monument was a valid and just one against the estate of the decedent. The court, in consideration of the agreed statement of facts, allowed the claim in favor of appellee to the amount of $152.60, and, over appellant's motion for a new trial, adjudged that the same be paid out of the assets of the estate of John Christman, deceased. From this judgment the administrator appeals, and as

rule. In that case suit was brought by the appellees against the estate of the deceased, at whose grave they had erected a monument for the price of $175 upon the order of the mother of the decedent, in settlement of which she had executed her own note for the price thereof. The facts in that case are not fully disclosed by the opinion, but an examination of the record reveals that the assets of the estate amounted to about $700, and that there were claims against the same, and the order or contract for the monument in dispute was made after the appointment of the administrator, and without his consent. This court held, under the facts, that a recovery against the estate could not be sustained. That case, under the circumstances, is easily distinguishable from the one at bar, and therefore is not controlling. The statement of facts herein involved is silent in respect to the following: (1) The value of the estate left by the deceased; (2) whether the estate is solvent or insolvent; and (3) whether the monument in question was suitable to the condition in life of the deceased, and the price thereof reasonable. Hence as to these features, under the circumstances, we must presume in favor

of the action of the lower court in allowing the claim. The objections made to the allowance thereof are not based on the ground that the monument was too expensive, or that it was not suitable to the station in life of the decedent, but are made wholly upon the ground that under the facts the claim cannot be legally allowed against the estate. Counsel or appellee, however, contend that the claim in question must be regarded as funeral expenses, and, as she ordered and paid for the monument before the appointment of the administrator, she is entitled to be reimbursed by payment out of the assets of the estate, or, in other words, that the doctrine of subrogation should be applied and enforced. If the claim in dispute were in the first instance valid and just, and one that could have been legally contracted by the administrator, and paid for by him out of the assets, certainly, then, there can be no reasonable objections urged why appellee may not be subrogated to the rights of the dealer or party who furnished the monument. This is the doctrine recognized and asserted in Brown v. Forst, 95 Ind. 248, and Neptune v. Tyler, 15 Ind. App. 132, 41 N. E. 965. In the case first cited the widow of the decedent had paid certain valid claims existing against the estate of her deceased husband, and in the other case she advanced money for that purpose. In Brown v. Forst, supra, this court said, "Her right to recover against the estate in such case rests in the doctrine of subrogation, and derives no force from any contract with the executor or administrator." At common law the necessary funeral expenses of a deceased person were required to be paid out of the assets of his estate, in preference to all other claims. 11 Viner's Abr. 432. The statute of this state relating to the estates of decedents prescribes that the debts and liabilities of a solvent estate shall be preferred and paid in the following order: "(1) Expenses of administration; (2) the expenses of the funeral of the deceased.

Section 2534, Burns'

Rev. St. 1901 (section 2378, Horner's Rev. St. 1901). By this statute it is certainly made the duty of an executor or administrator of a solvent estate to pay the reasonable and necessary funeral expenses of his decedent out of the assets of the estate in the order and priority prescribed. The question then is, can the reasonable and necessary cost of a tombstone or monument placed at the grave of a deceased person be classed and considered as a part of his funeral expenses? That this question should be answered in the affirmative is settled, and properly so, by many decisions of the highest courts of sister states. Ferrin v. Myrick, 41 N. Y. 315; Fairman's Appeal, 30 Conn. 209; Bendall v. Bendall, 24 Ala. 295, 60 Am. Dec. 469; Van Emon v. Superior Ct., 76 Cal. 589, 18 Pac. 877, 9 Am. St. Rep. 258; Crapo v. Armstrong, 61 Iowa, 697, 17 N. W. 41; Milton v. Smith, 16 R. I. 126, 12 Atl. 891, 27 Am. St. Rep. 728; Webb's Estate, 165 Pa. 330, 30 Atl. 827, 44 Am. St.

Lutz v. Gates, 62 Pistorius' Appeal,

Rep. 666, and cases cited; Iowa, 513, 17 N. W. 747; 53 Mich. 350, 19 N. W. 31; Griggs v. Veghte, 47 N. J. Eq. 179, 19 Atl. 867; Bell v. Briggs, 63 N. H. 592, 4 Atl. 702; 2 Woerner, Adm'n, § 358. In the case of Webb's Estate, supra, the court said, "In any event, the act of burial includes all the usual incidents of decent burial, of which one, at least, is the erection of a suitable tombstone." It certainly cannot be asserted that the mere fact that a tombstone or monument to mark the last resting place of the deceased was erected at the grave after the burial will result in making it any less an item incident to such burial. Of course, where the estate of the deceased is insolvent, a stricter rule prevails in the allowance of funeral expenses than is enforced where the estate is solvent. The rights of creditors of insolvent estates are of more regard than those of the next of kin of the deceased, and the rule in such cases is to allow no more to defray funeral expenses than is necessary and reasonable under all of the circumstances. In the determination of that question, however, the rank or condition in life of the deceased is a factor to be taken into consideration by the court. The rule that, in the eye of the law, one must be just before he is generous, applies with equal force to his estate after his demise, or, in other words, as asserted by some of the authorities, "Dead debtors must not feast to make their living creditors fast." In the absence of any statutory restriction to the contrary, the amount to be allowed against the estate of a decedent for the cost of a tombstone or monument, or other funeral expenses, is, as a general rule, a matter to be left, under all of the circumstances in each particular case, to the sound discretion of the probate court, the abuse of which discretion will be subject to review on appeal to a higher court. The question in respect to the necessity for the amount expended or incurred, and the reasonableness of the price charged for the article or thing furnished, is one which is always open to the inquiry of the probate court. In the case of Galvin v. Britton, 151 Ind. 1, 11, 49 N. E. 1064, we affirmed the rule that the circuit courts of this state, in the exercise of their probate jurisdiction, had the right to determine equitable questions as well as legal ones, when properly presented, and to award all necessary relief, whether legal or equitable. Under the facts in the case at bar, the lower court had the power, and was fully justified in subrogating appellee to the rights of the party to whom she paid or advanced the money for the monument in dispute, and the allowance of her claim against the estate of appellant's decedent was right,

While the complaint in this case is somewhat brief in its averments, still it must be held sufficient to withstand appellant's challenge under his assignments of errors. There is no error, and the judgment is therefore affirmed.