¶1Fully do I concur in the opinion written by Mr. Justice Grace.
¶2As it appears from the long and bunglesome record, in April, 1916, James Caldwell, of Stark county, made a will, giving to his daughter, May, a nominal sum, and to his wife, $15,000 in cash and a lot of ■other property, amounting to half his estate, and to the above-named trustees he left the rest of his estate to be held in trust and to accumulate for twenty-five years, awaiting the advent of a son, long lost and probably dead. If the son did not return and claim his share of the estate, then, after the lapse of twenty-five years, it was to go to a sister of deceased. About a year after the making of the will, and at the same moment, the testator and his wife were instantly killed. The deceased left an estate of $60,000. As he did not leave a surviving wife, the whole estate went to his issue. It went in equal shares to May Moran and the long lost son, if alive, and, if dead, then, by the terms of the will, the share of the son went to the sister of the deceased. Will or no will — son or no son — May Moran had title clear to one half of the estate. She retained defendants as her attorneys. They at once induced her to sign a contract of May 9, 1917, giving them 50 per cent of any sum realized from the estate, in addition to expense not exceeding $3,000. And thereby she contracted to make no settlement, adjustment, or contract regarding the estate, unless by consent of her attorneys. They induced her to sign a power of attorney, giving them entire and full control, with a right to compromise and settle all matters. Then on August 28, 1917, they induced her to make a deed conveying to them a half interest in all the land, 4,161 acres, and a half interest in all the other property of the estate. Then, on August 28th, they induced her to make an assignment transferring to them an undivided half interest in all the estate coming to her as heir at law, legatee, or by assignment or conveyance of other heirs or legatees, with directions to the trustees to deliver such property to them, and with directions to the county court to transfer and decree the same to. them. Then, under date of September 4, 1917, the plaintiff made to her attorneys a mortgage of her interest in the estate, to secure the payment of a promissory note for $12,000, and interest at the rate *595•of 10 per cent, in one year. This note and mortgage was given to secure $7,500, which the attorneys paid in cash to the sister of the deceased for an assignment of all her interest in the estate to May Moran. It ■was also given to secure an additional sum which was not paid. Hence the mortgage secures only $7,500 and interest, and it should not have been taken for a greater sum.
¶3Manifestly theré was nothing in the case to warrant either the original agreement, the deed, or the assignment. While an attorney may bargain for a fair and reasonable fee, he may not in effect rob his client by contracting for an extortionate or exorbitant fee. When Jacob bargained with starving Esau to sell him his birthright for a meal of bread and pottage, he took an unconscionable and unfair advantage of another’s necessity and distress, and that is just what was done in this case. Though Esau may have fully comprehended the nature of his simple bargain, that did not make it fair or conscionable; and though the plaintiff may have fully comprehended the legal tenor and effect of the papers she signed, though she may have been given the most lucid explanations of the same, that does not make the papers either legal, fair, or conscionable. The whole transaction admits of no palliation or excuse. It bears the indelible stamp of unfairness and •oppression. It has subjected the plaintiff to anxiety and ruinous expense far in excess of taxable costs. This expense and every dollar of it the defendants should pay.
¶4An attorney is a minister of justice. He has no right to bind his own client, or any other person, with burdens that are grievous and heavy to be borne.
¶5Addenda per Robinson, J.: Mr. Casey complains that the opinion is a grave personal reflection on his character as an attorney, but it should not be so construed; such is not the purpose of the opinion.
¶6(concurring in part and ■dissenting in part). We concur in the judgment of reversal but not in that portion of the judgment which declares the contract, exhibit “A,” null and void. Inasmuch as the majority of the court has based the judgment upon reasons with which we are not in accord, and have made holdings upon certain legal propositions that are not in accord *596with our views of 1he law, we deem it necessary to express both the-reasons for our partial concurrence in the judgment and for our dissent in so far as we dissent from the holdings of the majority opinion.
¶7Under the terms of the last will and testament of James H. Caldwell,, the plaintiff, May L. Moran, was only allowed an unconditional bequest of $25. It was further provided that if the son, Jay Allen Caldwell,, appeared and received the property bequeathed to him he was requested by the testator “to make such provision for his sister, May L. Moran, as he may deem meet and proper.” And the trustees were authorized, after paying taxes and expenses of maintenance of the trust property, to use such portion of the net income therefrom as they may deem meet and proper and expedient for the care and support of the daughter,, May L. Moran. But it was provided that if the daughter, May L. Moran, should object to the probate of the will or in any way attempt to contest or aid in the contesting of the same or any of the provisions thereof, or the distribution of the estate thereunder, then and in that event the testator annulled the provisions made for her, excepting the bequest of the sum of $25. The testator’s wife, Laura E. Caldwell, was given a life estate in the homestead, and $15,000, to be derived from the sale of personal or real property. Two bequests of $1,000 each were made to two sisters of the testator. All the remainder of the property was devised to the son, Jay Allen Caldwell, and three trustees were appointed to hold such property in trust for him for the period of twenty-five years. If the son, Jay Allen Caldwell, did not appear and claim the property during that period, it went to the testator’s sister, Deborah Lovewell, or the heirs of her body. Therefore when the plaintiff made her arrangements with her attorneys, the defendants in this case, this condition existed, — in order that the plaintiff might receive anything substantial out of her father’s estate the will must be adjudged invalid or inoperative. If the will was adjudged valid these obstacles presented themselves: (1) If the trust arrangement was valid the property would be in the hands of the trustees for a period of twenty-five years; (2) at the end of that period the property would not go to the plaintiff, but to the testator’s sister, Deborah Lovewell, or the heirs of her body; and (3) if plaintiff contested the will or objected to the probate thereof she was shorn of all rights thereunder, except the $25 bequest. 'Whether the will was ad*597judged valid or invalid, the question whether the testator or his wife •died first was one that had to be faced, as the testator’s wife had a son by a former marriage, who would take as her heir. Such was the •condition which confronted the plaintiff and her attorneys, at the time the contingent-fee contract was made. Manifestly plaintiff’s case was ■one which would entail a great deal of labor and expense, and the eventual outcome of which was problematical. It is not fair to assume •or say that defendants exacted a 50 per cent contingent fee in a case where there was really no question as to the outcome.
¶8The defendants, as plaintiff’s attorneys, contested the will. "While such contest was pending they negotiated with Deborah Lovewell, and procured from her an assignment to the plaintiff of all of Deborah Lovewell’s rights and interest in the estate. The defendants paid to ■said Deborah Lovewell $7,500 for such assignment. Negotiations were also carried on with Albert Mark Smith (Laura E. Caldwell’s son) with a view of obtaining an assignment of his interest in the estate. The $12,000 mortgage was taken by defendants in connection with these two settlements. The $12,000 mortgage is fully explained,— $7,500 was to be paid to Deborah Lovewell, and the defendants believed they could settle the Smith claim for $4,500, and the $12,000 mortgage would cover both claims, and was taken for that purpose. The defendants have never claimed under it more than the $7,500, which they actually paid to Deborah Lovewell. Even at this time the property is tied up in the hands of the trustees for a period of twenty-five years, unless the trust arrangement can be set aside, and if the son, Jay Allen Caldwell, appears within that time the property goes to him, and the contingent fee of the defendants will cease to exist.
¶9On this appeal the validity of the contingent-fee contract was not disputed. In their brief appellants say: “We shall assume for the purposes of this ease that the contract of May 9, 1917, was valid,” while some reference is made in the complaint to the contract as being-invalid. The case was not tried in the court below, nor was it presented in this court on the theory that the contingent-fee contract was void. Eu-t the appellants did contend that the arrangement made August 28, 1917, whereby the plaintiff, May L. Moran, deeded an undivided one-half interest in the lands, and assigned a one-half interest in the estate, was not in accordance with the terms of the contingent-fee contract, *598but divergent therefrom and unauthorized under its terms. This contention is amply supported both by the law and the facts of the case,, and we agree with the majority of the court in upholding the contention and setting aside the deed and assignment.
¶10The majority, however, not only hold that the deed and assignment are void, but they hold as well that the contingent-fee contract, exhibit “A,” is void, and in doing so they overrule the case of Greenleaf v. Minneapolis, St. P. & S. Ste. M. R. Co. 30 N. D. 112, 151 N. W. 879, Ann. Cas. 1917D, 908, although the case is not referred to in the opinion. Both parties upon this appeal have recognized the rule laid down in the Greenleaf Case as being correct, and in our judgment there is no occasion for overruling that decision. The majority in fact recognizes that the relief sought by the appellants would have to be given regardless of whether the contract was void or not, for in the opinion it is said that there is another reason why the deed and assignment are void. Under the Greenleaf Case there can be no question but what that provision of the contract which attempts to deprive the client of control over the litigation is void, and it is so conceded by the ■appellants. The question of the effect of such a void stipulation in a contract providing for a contingent fee was exhaustively considered in the Greenleaf Case, and in our judgment the principles laid down as the deliberate judgment of this court are applicable to contracts of the character of exhibit “A” in this case. Especially should they be regarded as law for all purposes of this appeal where admittedly the same judgment would have to be entered if the Greenleaf Case were followed. We do not regard the free overruling of a precedent that has so much to support it as being consonant with good judicial policy.
¶11Another matter in which we disagree with the majority is the holding as to the right of the executors to intervene in this action. It is held by the majority that the executors had an interest in this controversy that justified them in intervening in the action, and that they were not' only proper, but necessary parties. It seems to us that this holding is incorrect. It will be noticed that under the terms of the will, as stated in this opinion, it was expressly provided that if the plaintiff in this action should object to the probate of the will or in any way contest the distribution of the estate thereunder, all provision made for her was annulled, excepting only the bequest of the *599sum of $25. In the light of this provision of the will it became the manifest duty of the executors administering the estate to see that the testamentary intention of the deceased was carried out. And any attempt on their part to deal liberally with May L. Moran cannot be justified under the will. On the contrary it would amount to an attempt to defeat the very provisions of the will that it is their duty to uphold, if possible. It will be noted, further, that the prayer for relief in the complaint in intervention is the same as in the plaintiff’s complaint. It is inconceivable to us that the executors of the will of James H. Caldwell should be concerned with any arrangements that may be made between an heir who is sui juris and an attorney looking toward obtaining a share in the estate. They have an interest of course in seeing that the estate is properly administered, but they do not stand in the position of guardians of persons of full age and legal, capacity, especially of persons whose interests are in every way conflicting with the terms of the will that it is their duty, under the law and the will, to safeguard. The complaint in intervention should be dismissed. To entertain it is to encourage the executors to make common cause with an heir who is practically disinherited by the will, and likewise to encourage the heir to seek the favor of those who are not in a position to grant favors.