Gardiner v. May, 172 N.C. 192 (1916)

Oct. 11, 1916 · Supreme Court of North Carolina

172 N.C. 192

HENRIETTA GARDINER v. J. J. MAY, Administrator of WALTER GARDINER.

(Filed 11 October, 1916.)

1. Appeal and Error — Judgments—Motion to Set Aside — Findings—Presumptions.

Where the trial judge neither finds the facts nor is reguested to do so, upon the motion to set aside a judgment, it will be presumed on appeal that they were sufficient to sustain his denial of the motion, and the Supreme Court will not consider affidavits for the purpose of finding the facts.

2. Same — Consent Judgments — Burden of Proof.

Where the court enters a judgment on its record appearing to have been by the consent of the parties, it cannot thereafter be changed or altered, or set aside, without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court wherein it had been entered, that it was obtained by fraud or mutual mistake, or that consent had not in fact been given, the burden being on the party attacking the judgment to show facts which will entitle him to relief.

'3. Judgments — Consent—Effect.

While the terms of a consent judgment are settled by the parties, such judgment has the same force and effect when accepted and sanctioned by the court, and ordered spread upon the records, as if it had been entered in regular course.

4. Same — Findings—Presumptions—Attorney and Client — Burden of Proof.

Where a judgment appears to have been entered by consent of the attorneys of the parties, it will be presumed, prima facie, that the attorneys had the necessary authority from their clients to consent thereto in their behalf, with the burden upon the party seeking to set aside the judgment to prove that no such authority actually existed. Where the judge has not stated the facts, not having been reguested so to do, it will be presumed that he found such facts as would support his judgment. The general authority conferred by the relation of attorney and client discussed by Walker, J.

5. Same — Estates—Payment—Executors and Administrators — Remaindermen —Rights and Remedies.

Where the trial court refused to set aside a judgment entered by the consent of the attorneys of the parties, without stating the facts upon which the refusal was based, guestions presented in this Court as to the effect of payment by the administrator of the deceased of money to the life tenant under the will, without securing it to be paid to the remain-derman, a boy 10 years of age, and the administrator’s future liability on that account, cannot be considered. The remedies now open to the remainderman discussed by Walker, J.

Clark, C. J., dissenting.

Civil actioN beard by Lyon, J., at August Term, 1916, of Pitt, upon a motion to set aside a judgment, entered in tbe above entitled cause by consent of tbe parties, at May Term, 1916, of tbe same court.

"Walter Gardiner died in 1912, leaving tbe following will:

AydeN, N. 0., 13 August, 1909.

If I, Walter Gardiner, were to die after tbis date, it is my will tbat everything I bave shall be divided equally between my wife and my mother for their lifetime, and then to go to my son, Wilbur, if he lives; but if be dies, then to my brother, Isaac. Tbis refers to the money tbat will come to my estate from tbe Prudential Insurance Company, as well as what property I now have. Walteb GaebiNee.

I. I. May, the defendant, qualified as administrator of Walter Gardi-ner. When the will was produced the said J. J. May qualified as administrator with the will annexed, and allotted to the widow of the testator a year’s support. This action was then brought by the plaintiff, mother of the testator, for the half of the personal property bequeathed to her in the will. The cause came on to be heard at May Term, 1916, before Judge Whedbee, when the following judgment was entered:

It is now ordered, adjudged, and decreed, that the plaintiff recover of the defendant one-half of the sum of $400, being the year’s provision allotted, and one-half of the sum of $75, the excess value of the two horses, to wit, the sum of $237.50, after deducting one-half of the cost of this action; and in addition thereto it is further adjudged that the plaintiff is entitled to the sum of $21.51, which has been paid into the clerk’s office.

And it is further ordered that the cost of this action be taxed, one-half against the plaintiff and one-half against the defendant, and after paying said cost the defendant is hereby directed to pay over the recovery herein to the plaintiff, or her attorney.

H. W. Wiiedbee, Judge Presiding.

The judgment above set forth was, as appears by the record, entered by consent of the parties, through their attorneys. At August Term, 1916, defendant moved to set aside the judgment upon the ground that neither the parties, nor their - attorneys for them, had the power, by consent, to enter a judgment by which the corpus of the personal estate could be turned over to the plaintiff,' as owner of one-half of the life estate, without securing the remainderman against loss by any default or delinquency on ber part, from waste or otherwise. There was no allegation of fraud, and none of mistake, except the one that when defendant consented to the judgment he inadvertently overlooked the error in law, which' consisted in not providing for the security of the remainderman against loss. This motion was heard by Judge Lyon at August Term, 1916, when he denied the motion. No facts were found by Judge Lyon, and so far as appears from the record he was not requested to find and state the facts. Defendant appealed.

Harry Slcmner and L. G. Cooper for plaintiff.

F. M. Wooten for defendant.

Walker, J".,

after stating the case: As the judge was not requested to state the facts, we must assume that he found such facts as would support his judgment, as we do not presume that there was error in the judgment, but the contrary. McLeod v. Gooch, 162 N. C., 122; Pharr v. R. R., 132 N. C., 418, 423, and cases therein cited. If the defendant was not alert and careful of his own interests, it was not the fault of the plaintiff, and she should not be made to suffer for his inattention. She denies that there was any mistake of law or fact, and alleges that defendant fully considered the decree after it had been submitted to him and he had time to do so, with the aid of counsel; and further, that he fully and voluntarily agreed thereto after such examination of the judgment and deliberation as to its effect. We must assume that the judge adopted these as the facts, in the absence of a specific finding to the contrary. Pharr v. R. R., supra; Carter v. Rountree, 109 N. C., 29; Albertson v. Terry, 108 N. C., 75; Smith v. Whitten, 117 N. C., 389. It was decided in Carter v. Bountree, supra, as appears by the fifth headnote, that “Upon a motion to vacate a judgment it is not required of the court to set forth its finding of the controverted facts upon the record, unless a request to that effect is made by some of the parties to the proceeding, when it would be error to refuse the request.” McLeod v. Gooch, supra. “We do not consider affidavits for the purpose of finding the facts ourselves in motions of this sort.” Osborn v. Leach, 133 N. C., 428.

This brings us to the next and last question in the case, as to the nature and legal effect of a consent judgment. Where parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside, without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was obtained by fraud or mutual mistake, or that consent was not in fact given, which is practically the same thing, the burden being on the party attacking the judgment to show facts which will entitle him to relief. Edney v. Edney, 81 N. C., 1; Stump v. Long, 84 N. C., 616; Kerchner v, McEachern, 90 N. C., 179; Vaughan v. Gooch, 92 N. C., 527; Lynch v. Loftin, 153 N. C., 270; Simmons v. McCullin, 163 N. C., 409; and Harrison v. Dill, 169 N. C., 542, where the subject is fully considered and the authorities reviewed. Justice Dillard said in Edney v. Edney, supra: “A decree by consent, as such, must stand and operate as an entirety, or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification. If a clause be stricken out,” he adds, “against the will of a party, then it is no longer a consent decree, nor is. it a decree of the court, for the court never made it.” “There can be no doubt that a judgment entered up by the court, upon the agreement of parties, is, to say the least, as conclusive upon them as if judgment is rendered in the ordinary course of proceeding.” Pelton v. Mott, 11 Vt., 148. While the terms are settled by the parties, the judgment has the same force and effect as if it had been entered by the court in regular course, and, in that sense, it becomes the judgment of the court by virtue of its sanction in receiving it and ordering that it be spread upon its records. Kerchner v. McEachern, 90 N. C., 179; Simmons v. McCullin, supra. This is the settled law, as shown by many of our decisions. Vaughan v. Gooch, supra. If this be so, defendant has no ground upon which to rest his motion. There is no finding that there was fraud or mistake, or want of authority in the attorney, and it is not denied that the judgment as entered, and in form, was by consent.

It is suggested that the burden of proof was upon the plaintiff to establish that the consent judgment was entered by the defendant’s attorney with the authority of his client, or, in other words, that he was duly empowered to give the defendant’s consent'to the judgment. The law is to the contrary.

The general management of a suit is committed to the attorney, and he has a very extensive authority, which springs mainly from his general retainer. He has the free and full control of a case in its ordinary incidents, and as to those incidents is under no obligation to consult his client. In important matters, however, he should do so and take his client’s instructions. He is likewise under obligations to render an account when desired. As the client is bound by the attorney’s acts, if there is no collusion with the opposing party, the client can have redress in case of injury from the attorney alone.

The attorney may exercise his discretion in all the'ordinary occurrences which take place in a cause, and may make stipulations, waive technical advantages, and generally assume the control of the action. Weeks on Attorneys at Law, p. 385 et seq.

A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client, and not to have betrayed his confidence or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principle were different. The authorities which support this view are very numerous, and, as the question is an important one, we will refer to a few of them.

Speaking of consent and confessed judgments, it is stated by a text-writer that “The prevailing view seems to be that the power of an attorney to confess judgment for his client is implied, though some disinclination to follow this rule has'been shown. In every case, however, the record of the judgment would be prima facie evidence that the attorney who confessed it was properly authorized. It has also been held that an attorney may, by virtue of his employment, consent to a 'decree in behalf of his client.” 4 Cyc., 936. As sustaining this prevailing view, he cites, among other authorities, Hairston v. Garwood, 123 N. C., 345. The following cases in other States hold that the record of the judgment by consent, although the consent was given by an attorney appearing in the ease, is, at least, prima facie evidence that the attorney was authorized to do so, and acted with full authority in the premises: Price v. Ward, 25 N. J. L., 225; Merrity v. Clow, 2 Texas, 582; Arnold v. Nye, 23 Mich., 286; Dobbins v. Dupree, 39 Ga., 394; Wilson v. Spring, 64 Ill., 12; Jackson v. Brown, 82 Cal., 275; Martin v. Judd, 60 Ill., 78.

Anciently the right to question the attorney’s authority was denied, and this is the doctrine, even now, in some courts (Price v. Ward, supra), and intimation to that effect was given in Stump v. Long, 84 N. C., 616. But we need not go that far in this case, nor express any opinion in regard to the correctness of the view that an attorney has the implied power to consent to a judgment.

In Stump v. Long, supra, it was said by the Court, through Chief Justice Smith: “It is not denied that the defendant, whether in person or by his attorney, consented to the order. Indeed, we understand his Honor’s finding to go to the extent of saying that the defendant himself consented to it. But supposing it to be otherwise, and that he was only committed to it by the consent of his counsel, how then does his case stand ? Every agreement of counsel entered on record and coming within the scope of his authority must be binding on the client. To hold otherwise would lend much uncertainty to many of the most important business transactions — so important and so solemnly disposed of that the ¡oarties- are willing to have their agreements in regard to them enter into and become a part of tbe judgments of tbe court, to be permanently recorded upon tbe dockets of tbe court. Neither tbe courts nor parties can look behind such an act on tbe part of an attorney to inquire into bis authority or the extent and- purport of tbe client’s instructions. His acts and bis admissions must be taken as those of him whom be represents.” As said by Judge Reade in Bradford v. Coit, 88 N. C., 72: “Tbe negligence of counsel or mismanagement of tbe case or unfaithfulness are all matters to be settled between client and counsel. No barm must be allowed to befall others on account of it.”

If that be a correct statement of tbe law (and we do not decide that it is, as we need not do so), we are bound to treat tbe case as if tbe petitioner bad been actually present and given bis assent to tbe order as drawn. He agreed to it, as Judge Smith said, because bis attorney did. Tbe attorney bad tbe authority, in this case, to appear for tbe defendant generally, and to act in bis behalf, and must be presumed to have bad power to consent to tbe judgment. In view of this fact, tbe following statement of tbe law, taken from Harrill v. R. R., 144 N. C., 542, is quite pertinent: “Tbe counsel who signed tbe case agreed in behalf of tbe defendant was actually its attorney at tbe time, and representing it in this case at tbe term of tbe court when tbe case was settled. He bad, apparently, all tbe authority necessary to act in tbe premises, and because be failed to observe special private instructions as to tbe manner of defending tbe suit is no reason, in our opinion, under the circumstances of this case, why tbe judgment should be set aside, as be appeared to be clothed with general authority to act for tbe defendant.” Greenlee v. McDowell, 39 N. C., 485; Branch v. Walker, 92 N. C., 89; Beck v. Bellamy, 93 N. C., 129; Weeks on Attorneys, sec. 222; Rogers v. McKenzie, 81 N. C., 164.

But tbe only question here is whether prima facie tbe attorney bad authority, and not whether be hiid such as is incident to tbe relation of attorney and client. If there was prima facie authority, it follows, of course, that the burden of proving tbe contrary is upon tbe defendant, or tbe client. In Rogers v. McKenzie, supra, it is said by tbe Court: “If tbe existence of ample authority to act is assumed from tbe appearance of tbe attorney, with tbe sanction of tbe court (and ordinarily it could not be questioned), all the results must follow as if actual authority bad been conferred, and among them tbe rightfulness of tbe defendant’s payment.”

It is tbe course of tbe King’s Bench, said Holt, C. J. (1 Salk. 86), “when an attorney takes upon himself to appear, to look no further, but to proceed as if tbe attorney bad sufficient authority, and to leave tbe party to bis action against him if be has suffered by bis default.” Jackson v. Stewart, 6 Johns, 3. And Chancellor Walworth said: “As a general rule, when a suit is commenced or defended, or any other proceeding is had therein, by one of the regularly licensed solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client, nor, of course, to stop and ascertain the extent of his authority.” Insurance Co. v. Oakley, 9 Paige, 196; Weeks on Attorneys, secs. 198, 199.

The cases we have just cited were approved by this Court in Rogers v. McKenzie, supra. We also refer especially to Morris v. Grier, 76 N. C., 410, and Hairston v. Garwood, 123 N. C., 345.

As said by Kent, C. J., in Denton v. Noyes, 6 Johns (N. Y.), 295: “If the attorney for the defendant be not responsible or perfectly competent to answer to’ his assumed client, the court will relieve the party against the judgment, for otherwise a party might be undone. I am willing to go still further, and, in every such case, let the defendant in to a defense of the suit. To carry the interference further beyond this point would be forgetting that there is another party in the ease equally entitled to our protection.” This statement of the law was quoted with approval and applied in the recent case of Ice Co. v. R. R., 125 N. C., 17. See, also, Peregoy v. Bank, 147 N. C., 295; Hairston v. Harwood, supra.

It is said by the Chief Justice in Westhall v. Hoyle, 141 N. C., 337: “The consent of counsel is stated in the judgment, and is binding upon the defendants in the absence of fraud and collusion,” citing Hairston v. Garwood, supra. In Henry v. Hilliard, 120 N. C., 479, it appeared that an order or judgment was entered by consent and request of counsel, who it was alleged had no authority to act as an attorney for the party he professed to represent, and the Court thus dealt with the matter on motion, as here, to set aside the judgment: “It is not denied that both parties were marked as attorneys of record for the defendants. It seems that one of them has placed himself in a condition that calls for an explanation, and the other is repudiated. The movers in this matter seem to think that these facts are of benefit to them. But we cannot see that they are. Neither of them ever was counsel for the Hilliards (opposite parties), and their action does not fall under Gooch v. Peebles, 105 N. C., 411, and Arrington v. Arrington, 116 N. C., 170. It is expressly stated in the order that it is made by consent of all the parties. We are bound by the statement as a matter of record. Woodworking Co. v. Southwick, 119 N. C., 611. It would be utterly destructive of all our ideas of the verity of records if they could be annulled by some one coming in after court and saying he did not agree that such an order should be made, although his attorney did.”

Weeks on Attorneys at Law, after reviewing authorities, thus states tbe principle: “Confession of judgment by counsel representing the ease, with the knowledge of the party, is sufficient, without any special authorization to that effect. In attacking a judgment obtained by confession, especially after a long lapse of time, merits must be shown by the applicant. To justify a court of equity in interfering with a judgment at law on the ground of want of authority to appear, the evidence should show clearly and unequivocally that such judgment was fraudulently and wrongfully obtained without negligence or fault on the part of the judgment defendant. The burden of proof is with the complainant, and before he is entitled to relief he must fully establish what he alleges to be true. And this cannot be done for the first time on review. With this understanding, there seems to he no doubt but that a direct action in equity lies against a judgment obtained by the unauthorized appearance of an attorney. But it should be brought with all possible speed after the judgment is rendered. It has been the practice, sometimes by motion and sometimes in chancery, to relieve parties against judgments so rendered.”

Price v. Ward, 25 N. J. L., 225, states the ancient and modern doctrines as follows: “Whether the want of authority in the attorney can be shown in avoidance of a judgment regularly entered, after an appearance or confession of judgment by an attorney of the court in which the judgment is rendered, is a question which has undergone much discussion, and is beset with serious difficulties. The weight of the ancient authorities is against the practice. If the attorney acted without authority the judgment was held, nevertheless, to be regular, and the defendant left to his remedy against the attorney. The appearance entered by the attorney, though not lawfully authorized, was held a good appearance as to the court,” citing Keble, 86, 89; 1 Salk., 88; Com. Dig., “Attorney,” B, 7; 1 Tidd’s Prac., 65; Oro. Jac., 695; Smith v. Bowditch, 7 Pick., 137.

In Denton v. Noyes, 6 Johns, 305, Chief Justice Kent, after an elaborate review of the authorities, said: “The rule appears to me- to be settled upon too much authority to be denied, and upon too much principle to he disturbed. Without it there could be neither safety to suitors nor trust in the profession.” The action in Post v. Neafie, 3 Caine, 26, was brought upon a decree of a court of chancery. The decree, it appeared, was founded upon an agreement between the parties, signed by their attorneys. One of the objections to a recovery, urged by the defendant’s counsel, was that the agreement on which the order was made was out of the ordinary course of the power of solicitors, and that no authority, appeared for making it. The objection was not noticed by any member of tbe court, excepting Justice Spencer, wbo said: “If this had been an action depending in a court of common law in New Jersey, and the attorney had confessed a sum of money due to the adverse party, it could never become a matter of inquiry, in a suit on the judgment, whether the attorney had acted by authority. If in this case the defendant’s solicitor was unauthorized to enter into the agreement on which the decree was ultimately founded, it was examinable only in the court having original jurisdiction. It is to be intended that the solicitor acted by the direction of his client and for his benefit.” Notwithstanding the weight of these authorities, “the current of recent American decisions,” it is said in Price v. Ward, supra,, “is against the rule, and in favor of admitting the authority of the attorney to be drawn in question. Osborne v. Bank of U. S., 9 Wheaton, 829, and other cases. The record is prima facie evidence that the attorney who appears to the suit or confesses the judgment is duly authorized for that purpose, and, in the absence of contradictory evidence, will be held conclusive. But the authority of the attorney may be drawn in question in pleading, and may be disproved by evidence.” To the same effect is Bank v. McEwen, 160 N. C., 414.

But as far as we need go, without indorsing all that we have quoted, is to hold that while the want of authority in the attorney may be shown, the burden of showing it is clearly on the party who attacks the consent judgment in a proper proceeding brought for that purpose.

If the parties had no authority to affect injuriously the rights of Wilbur Gardiner, son of the testator and the remainderman, he will not be prejudiced, in a legal sense, by the decree, as he is not a party to the suit. He may, perhaps, be entitled to intervene by motion in the cause or an independent civil action, as he may be advised, and assert his claim, and arrest or stay the payment of the fund to plaintiff by injunction, or restraining order, until his ultimate rights may be determined. But this matter is not before us, and we neither express, nor intimate, any opinion with regard to it, nor will we consider the question whether he has a right, as now contended by defendant, to have the fund preserved in some way for his benefit and enjoyment when the life interest has expired, as, not being a party to this proceeding, he could ask for no such relief, and, besides, the facts as to the attorney’s authority have not been stated in the case,

Affirmed.

Clark, C. J.,

dissenting: Walter Gardiner died in 1912, leaving an aged mother, one brother, Isaac, a wife and an infant son named Wilbur. By his will he devised his property to “be divided equally between my wife and my mother for their lifetime and then to go to my son, Wilbur, if be lives; but if be dies, then to my brother, Isaac.” Tbe defendant May qualified as administrator, and bad tbe year’s provision allotted to tbe widow, $300, and $100 for tbe son. His final account showed that tbe personal estate was $1,222.24, from which tbe above debts paid and expenses should be deducted.

On 18 December, 1914, tbe plaintiff, being tbe mother of tbe deceased, brought this action against tbe administrator to surcharge tbe final account as filed. The plaintiff’s counsel and defendant’s counsel agreed at May Term, 1916, upon a consent judgment that tbe net amount due for tbe plaintiff’s half of tbe estate in tbe bands of tbe defendant was $259.01.- Tbe plaintiff in July, 1916, caused execution to issue upon said judgment. On 21 August, 1916, tbe defendant moved to set aside tbe judgment, which motion being refused, be appealed to this Court.

Tbe defendant does not deny that $259.01 is one-half tbe estate in bis bands, and avers that be is ready to pay tbe same over to tbe plaintiff, the mother of the deceased, if tbe life tenant is entitled to receive tbe fund. But be avers that tbe consent judgment was merely intended to fix tbe amount so due, and that inasmuch as tbe plaintiff was only entitled to a life estate therein, and is insolvent, that should be pay tbe corpus of tbe fund over to her be may be liable at her death to pay tbe same amount over again to tbe son, who is now 10 years old, or, if be should die, to tbe brother of tbe deceased, who under tbe will are entitled to tbe corpus of tbe fund after tbe death of tbe life tenant. He avers bis readiness to pay tbe fund into court, that tbe interest thereof may be paid to tbe mother during her lifetime.

Tbe plaintiff’s counsel cites authorities in our Court that, there being no trustee interposed under tbe terms of tbe will, tbe administrator will be discharged upon paying over tbe corpus of tbe fund to tbe life tenant ; that since tbe testator has thus seen fit to trust the life tenant, tbe administrator is not charged with doing more than banding tbe fund over to her. To this it is objected that if this Court so decrees without tbe son or the brother of tbe deceased being made parties, they are not bound by such judgment, and, notwithstanding tbe judgment of tbe Court, may bring action against tbe administrator and subject him to payment again of the fund, if it be that be ought not to pay it over to tbe life tenant.

In this state of things it is eminently proper that this Court should issue notice to both tbe remaindermen, tbe son. and tbe brother of- the deceased, that they may be represented. Tbe son, who is now 10 years of age, should be represented by a guardian ad litem, appointed for that purpose.

The plaintiff is not bound by tbe prayer of bis motion, which was to set aside tbe judgment. But he is entitled to any relief which tbe alie-gations in Ms complaint or motion, if proven, entitle liim to have. McCulloch v. R. R., 146 N. C., 316; Gilliam v. Ins. Co., 121 N. C., 372, and numerous other cases cited in Pell’s Revisal under section 467, subsection 3. In this case the above facts are not disputed. To send the case back to the lower court with leave to the infant son to institute proceedings to protect his rights would be in vain, as he would doubtless take no action at this time, but would wait the death of his grandmother, when he can assert his claim, if it is good, against the defendant, who in such case would be compelled to pay it over to him. The administrator would thus be compelled by this Court to pay the corpus of the fund to the grandmother, the life tenant, and would be helpless to protect himself on the death of the life tenant against an action by the son or brother of the deceased, as the case may be.

Besides, such multiplicity of suits would probably eat up the entire fund, which would go to -lawyers’ fees and court costs, which was the result oftentimes under the old system in which a judgment was permitted at law and then an injunction was brought on the equity side of the docket to prevent the collection of the judgment, to the great vexation and expense of the parties entitled to the fund and to the great profit of' lawyers and court officials, whose fees often absorbed the entire fund.

In this enlightened age we have well passed that state of things, and to prevent its repetition it has been provided by statute that even on appeal to this Court the Court can “amend by making proper parties to any case where the Court may deem it necessary and proper for the purposes of justice, and on such terms as the Court may prescribe.”' Revisal, 1545. This statute was jmsed for the very purpose of such case as is now before us, to avoid multiplicity of actions and the absorption of the fund in unnecessary counsel fees and court costs. It has been repeatedly acted on in this Court. See citations to that section-in Pell’s Revisal, 1545.

Justice surely requires that a simple notice should issue under Revisal, 1545, from this Court to the remaindermen, the son and brother of the deceased, that they may be heard here. In that case there will be small cost or delay; and if the court is of opinion that the administrator will be protected by paying over the fund to the life tenant, such judgment will be a protection to defendant against future litigation upon the death of the life tenant,. But if the court should, be of the opinion that the fund cannot be paid over to the life tenant, an order can be made-directing the fund to be paid to the clerk’s office and invested and interest thereon to be paid to the life tenant during her life.

The defendant and his counsel both aver that there was no authority given to said counsel to bind the administrator to pay over the fund to-the life tenant and thereby subject the administrator to payment of'the fund again to the remaindermen, and that the whole object of the consent judgment was to ascertain the amount of the fund in which the plaintiff as a life tenant is interested, which was a fact that could be agreed on. The burden was upon the plaintiff to show that defendant’s counsel .had authority from his client to bind him by consent judgment to do what the plaintiff claims, which is' a matter of law, and this authority has not been shown. The presumption is that the amount due by the defendant only was'ascertained by the consent judgment. He should not be required to pay oyer the corpus of the fund to the life tenant unless she is entitled to receive the same as a matter of law. That was a matter of law, and not of fact, and should be adjudicated in this action, the remaindermen being made parties.

Any judgment which requires the administrator to pay over the fund to the life tenant unless the remaindermen are made parties would unjustly subject him to future litigation at the will of the remainder-men. The notice to the remaindermen could issue under Bevisal, 1545, at the discretion of the court, and should be made returnable during this term on a day named, and the entire matter thus finally disposed of without appreciable costs or expense. Surely, the interests of justice and the intention of Eeyisal, 1545, require that this should be done. The spirit of the age as evidenced by the action of the American and State Bar Associations and by legislation in this State and everywhere else requires that we should thus simplify the administration of justice and not follow the antiquated and obsolete practice of a ruder age, the result of which was to delay justice, accumulate costs, and “lengthen simple justice into trade.”