*1 do eminent power of Voir site under District is have held
main? We municipal organiza legally constituted power possesses such consequently tion condemnation. ac- trial court judgment here
cordingly he reversed and nothing appellees take
rendered River Nueces appellants Lower governing Supply District and its
Water
officials.
n and rendered. Reversed J., participate in the de- POPE, did not n n this case.
cision of OF NATIONAL BANK
The AMERICAN al., Appellants, et BEAUMONT al., Appellees.
R. E. et BIGGS
No. 4929. Appeals of
Court of Civil Texas.
Beaumont.
March 1954.
Rehearing Denied Dec. 1954. Rehearing
Further Denied Dec. 1954.
21á
Orgain, Tucker, Beaumont, Bell & Graves, Dougherty Austin, & Greenhill, Morris, Oldham, Houston, & Underwood appellants. Liberty, Biggs, Kuykendall, R. E. L.F. Austin, Newton, E. Davis, appellees. E. WALKER, Justice. appeal
This is from a decree which au- thorizes the trustees of the Aurelia Mitchell pay a lawyers Trust to fee to certain foi in 1949 lawyers v. Mitchell was filed in by these rendered services legal suit, class in behalf of the remaindermen had in. the proceedings The suit. another plain- and in Appeals and this suit it was claimed of Civil in the Court royalties tiffs which the sub therein that the reported are Court paying life tenants had been S.W.2d Mitchell v. nomine meaning were not within Fol income 803. 1, 244 S.W.2d Tex. but, proper Aurelia will material to Mitchell’s matters is a lowing statement construction of appeal. n (t(| t) principal of the estate should be was created Aurelia Mitchell eventually to the remaindermen. Two 'of Mitchell. of Aurelia by the will pleadings Mitchell v. Mitchell are not children, namely, Leon Mitchell’s Aurelia appeal, the statement of facts filed on this Mitchell, were named and Fuhr evidence; put although apparently trustees; Leon Mitchell executors infor- statement of facts contains some death of his since the as trustee has acted mation about that suit the contentions replaced as Fuhr Mitchell mother. necessary makes it to deter- Mitchell before trustee his brother *5 the mine of that suit. The trustees nature filed, was and Vick Mitchell v. Mitchell Mitchell and Vick Mitchell were de- Leon his as trustee since Mitchell has served in Mitchell v. and we fendants appointment. they infer that the sole and were defendants that the other tenants life were not apparent administration of It is to the trustees both suit. These were sued probate the Mitchell’s estate Aurelia capacity in their as trustees individ- and' as long and from the nature ago, court ended plaintiffs uals. It claimed that was Mitchell, in Mitchell v. of the issues made payments royalties tenants the life ended, any at least we infer that it stated, amounting, have as we to about practical purpose, that suit before was filed. $100,000, misappropriation funds was a trustees, plaintiffs trust and will of Mitchell named two Aurelia prevent sought any relief which would more of. beneficiaries of the To classes trust. payments royalties to the life tenants class, tenants, may who the life one be called which would restore to the trust fund the was directed that the income from the paid royalties been which had to said life paid principal during trust be plaintiffs also sought tenants. The removal tenants, class; life of said and to the other Leon trustees Mitchell and Vick remaindermen,-it who called the they that, required to or else principal directed of the trust be give security. following note the sen- We paid when the life tenancies ended. Among opinion tence of the Court’s surviving the life tenants were children reported at 244 S.W.2d the same also Mitchell, and, stated, as we have Aurelia being in “The brought evidence: suit was trustees of these were some children. require trustees to carry out the space For time the trustees collected alleged respect the will terms of with to- lease; royalties gas under an oil and and on testamentary large hold the advice of royalties counsel treated these money received sums of said trustees as income under the will of Aurelia Mitchell intact, royalties require oil and to said paid them to the life tenants. The royalties to be accumulated for the benefit Trustees, themselves, were estate, members of prevent and to of the trust class, stated, this as we and thus distributing royalties said from "to royalties. themselves of these and other children themselves testa- evidence does children of exactly daughter not show and to the what trix royalties paid out had been amounted to but testatrix who excluded.” the sum. the approximated $100,000, appears sentence also and of this note in the sum each Appeals. the trustees Leon Mitchell of the Court of and Vick Civil See : $8,000 page 745. $10,000. received about or 235 S.W.2d at suit, account, plaintiffs
However, appears they 'that' to file an so with it also One the will. construction of assistance of. their counsel. asked for a testified; the remaindermen' of counsel for The trustees contested the suit. There is bring' days they evidence “Q. did not few after The trustees were process, and Vick Mitchell served they Leon with A. went action? lawyer sued Leon Vick for construed the will for them did not. We wh<? * * * employed misappropriating represent funds. him to them in the suit. The lawyer evidence shows what this n you prepared “Q. I assume employed and the associate counsel him case? A. Yes. in-that pleadings did, and the trial court was authorized to- that Leon conclude .Mitchell and' and Vick Mitchell “Q. Leon guided by the advice of estate, as trustees? A. sued do-, counsel determining they what should ways, sued both as trustees They were about the suit and what cause of action in distributing any keep them they suit pursue. they should Since money, individually. of this more trustees,- answered as the trial court was actually, “Q. action' It was an authorized conclude that acted as estate, status determine the suit, contesting trustees in royalty corpus whether they purported and undertook to act for the right. That is ? income A. estate, trust position and that their only' previous assertion of their $100,000 as the is con- “Q. far So n will, construction' of consequence or a cerned, brought for suit was not of that construction. In the absence of find- *6 bring recovery-of-that? A. We didnlt fact, ings assume, of support 'we in of the such, turned out but it to be.” it as trial judgment, court’s that the trial court n Supreme of the The sentence Court’s first so found.- brought “This suit was reads: royalties disputed which were in Mitchell, grandson Raymond a of Aurelia Mitchell v. Mitchell were- not all of Mitchell, suit under class Rule as a principal of trust estate. The Procedure, circumstances for Texas Rules of Civil con- suggest royalties, accruing to by' a struction will executed of Aurelia accrue, did constitute the most valuable plaintiffs’ Mitchell, attorneys wherein inter- part principal while Mitchell v. sought their rights vened and to have in ' pending Mitchell was but the value of protected.” determined and principal really rest of the proved. was not necessarily matters think these show that plaintiff prayed remaindermen also for a- Supreme After return of Court’s construction of the will. pursuant.to mandate and hearing, the trial statement facts shows only in decree, . which, court rendered a among n way response general what matters, the trustees other (a) declared that all mineral Leon Mitchell and Vick Mitchell production proceeds thereof were a against them. the suit Their principal counsel part filed estate; the trust ( n b) answer for them in both their capacity appointed The American National Bank capacity and in their as trustees as individ- of Beaumont a co-trustee with Leon only liability uals. The Mitchell, remaindermen Mitchell and Vick who were re- purely which the trustees had as individuals, in (and tained office thus partial had a apart liability trustees, liability against them) ; success in the suit (c) as- money they for the had received as members attorneys sessed fee for the plain- tenant beneficiaries, the life class of (as tiffs in Mitchell v.- Mitchell directed liability infer that this life tenants- the Court’s mandate); (d) petition. claimed provided It was as follows: —“the issues may them, necessary for as an properly incident of the arise on the obligation and duty- n party to be to ren- á unless the trustees are 'Mitchell and Vick of—Leon of, , representative, considered of the .beneficia- of the amount accounting, der an nn ' - -, on ries. liability individually and as trustees their ... liability conduct, past account of ‘ On when the mo- date heretofore monies persons other filed, a hearing and after at which tion are— to them said distributed the trustees Leon Mitchell and Vick Mitch- cause' into a new severed—and—transferred testified, ell the trial court made an order this, separate-' carry style as the same attorneys’. which fixed two fees. One of judg- This ly as—No. 13751A—. docketed these fees was assessed in behalf of one and, n matters be—final—as ment—shall lawyer $1,500. fee, and wás The other All is- expressly adjudged. herein issues which was assessed in behalf of disposed of or transferred finally sues not so lawyers represented who the trustees 13751A, in disposed No. shall be into Mitchell, in percent Mitchell v. was 10 in, continuing jurisdiction retains this court royalties impounded which had been of the the administration over said cause after Mitchell v. was filed. The trustees the grants to the trust estate—and also, approval order recited an “the in the—-trans- apply to this right to motion pay” of Leon and Vick Mitchell—to such orders ferred cause for percent counsel, the 10 fee to one of and it enter in said necessary court to for the provided receipt for á and release. This administration of relating further cause purports pursuant have been made with the mandate accordance estate in to a motion the trustees Leon Mitchell of. * * Supreme Court granted but the motion was that which we dated either described above judgment was This June and we infer that it the law- was described in 1952. On or June order as represented in one trustees because the the trustees yers who had purport be, part, motion did in motion behalf v. Mitchell filed.a No. impounded said trustees. The according funds (which, to.the 13751A seems, percent from which the 10 just to be was to be quoted, decree 5/11 June part just the order described of Mitchell v. Mitchell left royalties litigation serv- Mitchell v. Mitch- pending) in which described the *7 ell, and under the prayed and the court the rendered them ices payment Court of the fee the allowing them reasonable under trial an order “to enter payment court’s order would have been a to the Leon for their services trustees fees” principal from the of the trust The directing Mitchell and estate. and Vick testimony hearing of Leon Mitchell on this pay “out of funds this fee the trustees to approved para- that he this fee wished in the shows and Statements said estate.” made, position order and this was immediately prayer before the con- graph .the of Leon Mitchell and Vick Mitchell that trustees and indicate the mo- cern trial of this cause. of the made in behalf trustees was also tion Mitchell and Vick Mitchell. This Leon July performed 14th The order of was lawyers signed by making motion $1,500 only paid fee part. in and foot, “ap- beneath the word it and at payment steps taken toward the 10 appear signatures of Leon proved”, fee, right percent but the this fee Mitchell. Vick The American and litigation. and was into left to came party was not a Bank to this National motipn; according allegations said bank’s Bank, National after The American in which it filed the suit now petition mentioned, just filed proceedings the suit h,ad review, qualified as trustee review. is now under This suit was time. at this lawyers in against the whose brought favor July 14th had assessed attor- order other notice issued on this No citation fees, the bank’s against beneficiary neys’ co-trustees of the no trust estate and motion Vick Mitchell and and themselves Leon the trustees was made than is, (that ries remaindermen) -Plaintiff taken of the Trust. beneficiaries appeal. 14th was July the order of alleged that bank necessary Opinion. voidable because else was void or Trust, parties, beneficiaries o.f remaindermen and American partici- did not
had omitted been briefs, separate National Bank have filed proceeding which order pate in in points assigned, of error the remain- alleged fur- Plaintiff bank made. had been dermen will first be considered. validity July of the order ther that the dispute into between benefi- come 14th had assigns Point 5 of the remaindermen and, hand on the one of the Trust ciaries error that estate is not liable for the trust hand, the co-trustees and represented bank’s lawyers the other the services of who Plaintiff persons under the order. entitled Leon Mitchell and Mitchell Mitchell Vick its co- further that it and alleged bank services of such v. Mitchell “because the $1,500 fee assessed trustees attorneys were for the not rendered benefit Concerning these July 14th. position of the estate and the trustees prayed that plaintiff bank first matters attorneys antagonistic and their but, 14th void be declared order of estate.” nevertheless, payment $1,500 be say reply appellees that a In to Point 5 bank instruct- declared valid and upon a trust benefit be conferred estate' payment regards charge the ed how it, that in Mitchell enhancing without principal estate. income and did confer a v. Mitchell benefit alternative, prayed plaintiff bank In .the re- the trust estate because suit was valid July 14th that if order of instrument, an trust apibiguity solved percent be made payment the 10 con-, It seems to be Aurelia Mitchell’s will. way be instructed and that said bank certain appellees pur- tended that the main regards charge payment the- how to procure pose was to a construc- principal. income Appellees say the. will.- as a tion of right argument that the trustees’ to an Separate pleadings filed various attorney’s fee for the services. of their defendants, it is concerning these lawyers defending Mitchell v. say in whose- necessary that counsel depend upon they whether won ought not to July 14th had'assessed' favor the order lost suit. pray- or the. action percent fee filed cross the 10 14th either ing the order may agree appellees that with a con upon all binding adjudged final con- ambiguous declaration of struction proper be awarded cerned or that upon the trust estate' trust confers a benefit 'The trustees Leon Mitchell fee. attorney’s fee of and that the trustee *8 order of 14th alleged beneficiary a in a suit either to that of substance, prayed; in was valid and said may be charged the declaration construe performed. order be proper cir the trust estate against and, expense being extra cumstances ' judgment de- The trial rendered principal ordinary, paid out of the of July 14th to be order of creeing the valid decisions The facts of the estate. binding and and to be involve a áppellees cite and which construc Trust, and author- the beneficiaries go no than a trust instrument further tion of percent 10 ized the trustees Trust, In re Atwood’s 227 Minn. See this. .provid- order. decree by that assessed 736, 1126; 495, 9 A.L.R.2d 35 N.W.2d paid fee.should be from ed further 272, Reeve, 65 Ill. N.E.2d v. Tolman the trust estate. principal 815, by appellees as Re cited Estate of Estate, Reeve; plaintiff In re Crawford’s 340 Pa. bank From 521; Green, Howland v. 16 A.2d beneficiaries of the‘trust estate certain and been 283. We have contingent' unable to Mass. beneficia- who are described recognized which if redounded avail- would have reports Clarke find v. Clarke n abl'eto to their appellees’ sole benefit.” us; according to n descriptionof like the it, this decision peti n others We think fact that the Butler, 180 Butler v. just cited. tion in Mitchell Mitchell involved a its successor and 230 N.W. Minn. prayer for construction n underthe does 218, 235 Minn. style same this, applicable make rule of decision to this and we note sort is of a different N.W. 918 applied case. For the rule stated is be attorney’s fee awarded an that in it object reference main to the .W-ith party. an unsuccessful suit; object and it seems to us that the main However, Mitchell was not a Mitchell v. .petition .of the in Mitchell v. Mitchell was (cid:127)simple declaration to construe the property, the recovery of to which the will more, as we have It involved much trust. title, peti was but evidence It preliminary statement. in our shown land, may tion be likened td one for founded past the trustees involved conduct of on a will which does not a involve trust sort, of the same threatened future conduct incidentally require does It construction. depletion fund its diversion of a prayer would seem that the for construction to another. from one class of beneficiaries petition, was but an incident of the not the plaintiff remain- have inferred charges prayers against for relief pray construction of the dermen trustees Leon Mitchell and Vick Mitchell. will, one to recover but the suit was also proof As read concerning the con property, right to a to establish pleadings tents of the filed in Mitchell v. n fundand to compel restoration question there was no of fact here principal moneys the re- out, and. for the trial court to decide. Had there trustees be maindermen asked that .would, course, been it have been resolved put All these removed or under bond. appellants the trial coürt’s considered, (cid:127)circumstances must be in addi- judgment. But when pertain all the facts construction, prayer tion to the in de- ing considered, to Mitchell v. Mitchell are termining whether the trustees were entitled position including taken the trustees to an fee. and the circumstances under which Trust, supra filed, In Re Atwood’s Minn. acted before and after that suit was [227 740], appears 35 N.W.2d the court said: “The that suit to have resolved into applicable may dispute rule be thus summarized: concerning over a cautiously In the sound and exercised dis- administration the trust estate which may court, equitably cretion of the and not as a matter of be likened to a sort attorneys’ expenses Butler, supra, Tight, appears fees and other Butler one, to be reasonably necessarily quoted incurred all while the rule decision necessary parties litigation allow- In re Atwood’s Trust was stated with properly charged to the trust ed and estate reference to and terms of suits to con respect it, litigation, with sub- ap 'where such or one like it strue which has been issues, necessary types material in plied stantial and situations involving meaning legal administration, questions to resolve the effect equitably can used the settlor in ambiguous language applied appel- this case in behalf of instrument, adjudication the trust if lees. This matter is discussed later. We *9 proper appellees’right thereof is essential to a administra- think to the fee does not trust, if, depend upon without unneces- whether tion of the trustees conferred delay, estate, sary expense litigation is con- a benefit unless the term primary good given very in faith for benefit ducted is to broad construc benefit The of the trust a whole. situation tion. adju- clearly indicates that the instant case Appellees say also that' the primarily for the benefit trus
dication executors as well as an incident tees were trustees and although as thereof entire -awarded the fee trial respondent plaintiff rights both asserted .court’s cite was true we For evidence that this be. by Article authorized judgment was. judgments be -of the is overruled .District-Court-and This contention R.S.1925. Appeals holding Mitchell (cid:127)of the Court of Civil and Vick cause Mitchell Leon adopted trustees’ by the Mitch 'the V. in Mitchell the court were before construction hold capaci decline counsel was correct. We primarily in their only or ell either . those lawyer convince as that who could their action It was ties as'trustees. a. reasonable right had no royalties the courts that he was paying in out the trustees will; but tenants, the .basis’for his construction their construction life under suit, us, independent consideration seems to on which caused that declaration of trust was, of Civil of the question in that suit and the basic Court circumstances Appeals, and the right. So far that the will action was whether this a basis did afford attending consid its execution (and we have the evidence shows was, -awarding judgment. 14th first court’s order of for that ered the truth, ambiguous. under which that the motion the fee and .in passed) law the services of the advice, trustees receiving After these represented Leon Mitchell and yers who ofit,¡ good in it arid because acted on -per represented services Vick Mitchell motive, paid faith, any improper without trustees,' not executors. We for formed royalties these to ’the life tenants out opinions Civil of the Court of note that the by- counsel until they were advised their only the' Appeals and of Court they stopped Mitchell v. Mitchell. were Mitchell Mitchell and Vick refer to Leon royalties, paying out thes>? these That to them as ex and do refer as trustees acting were as -trustees rind were trustees although the mandate These does. ecutors they administering’ the trust estate -as if indicate that Leon Mitch circumstances them-; they thought the will directed were were as execu sued ell Vick perform duty. attempting to their The fact formality. represented a In their tors this them as trustees that the trial court retained brief, remaindermen state that second they good is some evidence act fully estate had Mitchell’s been Aurelia faith as stated. administered, according to them and appellees in according to their second also nothing to show that There these brief, Aurelia Mitchell died' about nine any hostility toward the re- years before Mitchell v. was filed. provision maindermen or toward the 'in the will for the However, remaindermen. grounds there are other trustees benefitted from their conduct be- of Leon Mitchell and right which the cause, as members the class of life tenant their Mitchell to beneficiaries, they received considering grounds placed; these out; they paid royalties they were kept in following facts are to be mind: only minority two of several and had a authorized to find that The trial This matter interest. is discussed later. assume, the facts and we these were support judgment, court’s that such of that In Mitchell the trustees findings made. and, simply ground stood their they since Mitchell, acting Mitchell and Vick Leon remained in officeas trustees and were not pursuance of the estate and in as trustees bond, required give partially duty, an obvious received advice from They suit, contested successful. concerning meaning their counsel did so as trustees and acted on advice of wit, royalties will, to which we presence counsel; their as individuals is were income within the have mentioned liability to their royalties referable will and for meaning of the that reason they paid out as trustees and is will, payable were, said the life liability an element of as trustees. ground was reasonable There tenants. *10 advice if that advice these facts there question their counsel’s On is no considered, involving hostility by as we think it must objectively trustees toward
219 for with provision the trust estate or argument trustees and their em- phasizes remaindermen, question involving this;, supposed injustice no appropriation property for the payment of trust course such a would be sense, from individual benefit of the trustees property remaindermen’s in a upon founded a of the will but it payment by construction would also be a the life tenants, made under those sum- circumstances like because it would the fund reduce marized, question bad from involving no fraud or which the life tenants’ income is to improper motive, question So, faith in- payment no principal earned. a out of volving mismanagement of the trust or would be charge against the entire trust any duty concerning failure or estate neglect of merely one except the trust estate in the sense that the remaindermen. trustees’ construction of the will was point have seen no case in on the eventually wrong, held to be and decisions facts in which it was held as remaindermen which came out of situations these like contend, opinions but there containing are excepted applicable. we have are not Nor statements be extended to the purports do we case where a trustee facts of which, extended, this' case expense to act beneficiary for one support would position. remaindermen’s another, except trustees’ construc- Travis, See Melson 710, 133 Ga. 66 S.E. incidentally tion of the will gave something 936; Aydelott Breeding, Ky. 847, 111 to the life instead of to the re- tenants 916; 64 Will, S.W. In re Drake’s 195Minn. maindermen. 263 N.W. 101A.L.R. 801. In con What we do have is conduct the nection with the last decision we note the trust, the administration of the following argument by remaindermen, thought by per- intended and them to be a made in their discussion subject good formance of the all in faith matter of their Point unjust 6: “It is and founded a construction of an say (that is, to them to the remaindermen) counsel, ambiguous bywill for whose views ‘you won the suit and established grounds support,
there were reasonable royalties corpus, you must proved to be erroneous. your corpus fees out of for those who ” mistake, perhaps involving while- matters dissipated would have it.’ Dickerson v. law, concerning general was not one Co., Camden A.2d N.J. regulating law administration of trusts. proceeds ground on a somewhat different defending whether for from those stated in just the three decisions attacking conduct in a suit it and intended cited. stop prevent it and its future occurrence At least some of appear these decisions and to for the substitute trustees’ construc- to be illustrations of a rule- of decision one; will a tion different the trustees .the broadly which is stated as denying the trus- shall be allowed fee out .of particular expense tee the where his own principal of the estate. fault caused it. Bogert See on Trusts & question just In connection with the Trustees, 1), Sec. (Part pp. 147- Vol. stated, to be borne in it 'is also mind that 148; Trusts, 188.4,188.6, Scott Sections payment principal of the fee out of would 244, ; 585; 245 65 583, 584, Secs. C.J. remaindermen; only the affect not would p. 947, 872, inclusive; Secs. 867 to p. 1079, tenants, and in affect the life the same also Sec. 1006. remaindermen, proportion as for the are, to the life going income tenants comes There hand, decisions principal of the argu- estate. The which have allowed the trustee expense his seemingly remaindermen although im- erroneous, ment his view was his ac- payment unsuccessful, principal out of the plies that tion and his conduct the cause alone, by them litigation be one out of their would from which expense property resulted; after their successful contest and in these weight own cases has *11 220 232. faith and W. the good The Commission held that the trustee's given been to fee, That administrator was to his action. entitled his the reasonableness
to they put applied. holding, not on the adminis the rule of fault upon trator’s his faith good success 158, Estate, 31 Del.Ch. See re Sellers’ In the -of action. reasonableness his similar to that Holdings 67 860. A.2d They resisting “We said: think that in have been Delaware Chancellor the an effort to withdraw the estate situations. See types of other in administration, fees de allowance of 122, 49 N.E. Styler, 314 Mass. Crowell v. pends upon ef resisting whether in such services 599, holding that whether 2d good fort the administrator acts in faith appeal ben defending an in executors at and under belief the honest narrow a estate was too eficial to the tempted illegal. withdrawal It certain executors’ ground by determine which to ly duty is his surrender the trust to attorneys’ doing, fee for so right to property In one not thereto. entitled action and of executors’ reasonableness county court this case it seems controlling. And good being their faith application refused the to withdraw the Estate, 340 see In Wanamaker’s re estate, and we think that the administra Zaring, 380, 419, Zaring v. 17 A.2d Pa. op justified tor and the court were in language 514, N.E.2d 734. The 219 39 Ind. posing right If such withdrawal. easily last cited clear, the withdraw had been administra dispute applied between trustee justified tor have in con would not been Na beneficiary. see Cohn Central And v. defending a testing propriety of it. The 12, Richmond, 60 191 Va. Bank of tional proceeding suit or an must estate trustee, suc although 30, where the S.E.2d depend justice apparent attorney’s cessful, fee on awarded his case; and, acts where an administrator reason conduct was that his ground faith, necessarily good in he will not be said that ought not to able. It fees, deprived attorney’s he though even And see reasonable. action is successful justice be mistaken as to the of the case.” 648, Estate, Cal. 198 185 In re Gartenlaub’s Bill 209, 211, 520. page 16 A.L.R. P. Similar rulings in have been made 1050, 281, Warren, 74 N.E. ings 216 Ill. v. McCannon, See McCannon Tex. cases. v. the court would allow indicates Civ.App., 2 S.W.2d cited in Huff v. attorney’s an fee had ed the trustee he Huff, 327; 132 Tex. 124 S.W.2d Pen mistakenly ambiguous under an acted Hare, Tex.Com.App., dleton v. 231 S.W. refusing although him fee where his 334; Hirschfeld, Tex.Civ.App. Sass v. general law of trusts. mistake concerns 396, 56 (ruling respecting S.W. 941 trustee’s right costs); reimbursement Caldwell representative, Good faith Young v . & Morgan, Tex. 800. necessarily the of the ac- reasonableness circumstances, Hare, supra, note that Pendleton have been v. tion under Appeals, discussing courts in Commission given weight Texas situations right an duty attorney’s executor an was a basic where there' pulled probating will, ac- fee for representative’s good distinguishing faith into Gilroy Richards, against particular Tex.Civ.App. particular suit tion in a ground 63 S.W. people. temporary administratrix involved in Dyess, 213 Rowe v. S. This occurred Gilroy duty probate case owed no the Commission 234, 236. There W. will or to petition defend contest of the right of an ad Appeals considered probate. his fee incurred ministrator It seems to us application to withdraw resisting the trustees Leon Mitchell and Vick from administration. estate under a part of concerning basic the administra litigation duty administration of After extended that, trust as in eventually See S. Rowe Dyess, successful. tor
221 Smith, grounds 292, 222, Co. v. good their faith and reasonable 263 N.E. N.Y. 189 598; Id., 93 duty operation against 396, brought this into A.L.R. 264 N.Y. 191 N. 217, duty 601, E. quoted the basic the remaindermen. It was A.L.R. from these notes at of these trustees to administer trust 189 N.E. “It follows: has will, trust, been said purpose as the declaration of ‘the this ad directed, duty visory perform jurisdiction in order to assumed courts of posed equity they provide This had to construe is not to will. a substitute for they question judgment advisers, a took the the usual legal protect but to trus they question lawyer just to their should tees in the .class of- cases where the ad they consequence, formed of competent lawyers have done. In vice is not sufficient opinion, protection, faith and on reason- good in because of the mean doubtful respective ing grounds, concerning instrument, able of the trust or because of rights uncertainty of the life and the remainder- proper application tenants as to the exactly royalties, men and for law to facts of the case. There justifying the admin- same sort of reason must also be real need that the trustee’s ” they Dyess, jus- istrator in Rowe v. doubts be solved.’ This we consider to (cid:127) resisting rule, case, the remaindermen’s de- tified be the ordinary at least in in they administer the trust in a mands that and in that (b) before us. The language way. just quoted It then be said that different shows that a trustee is not attorney’s fee, they just were entitled to their entitled to instructions because he as the administrator was. wants them. There must be a doubtful question before he is entitled to in such ; qualification possible structions and he having
It
runs- a risk of
attorney’s
could have re
right
that the trustees
fee himself if he
ground
has no
quested
requesting
from the court both
for
instructions
the instruc
Harsha,
tions. See
Mitchell Mitchell was
v.
before and after
v.
Mich.
Jones
filed,
emphasized 206
page
N.W.
at.
980.
Whether a
remaindermen
suit for
argument.
their
We attach no
construction of a will is
in
to be
question
filed is a
weight
(a).
to this for these reasons:
A
and will
usually
ordinarily
determined
trustee is
affirm
under an
same matters
duty
lead to counsel
apply
ative
to the court
decide how a will
construed;
shall be
he
construction of a declaration of’ trust.
.must first decide
whether the will can be
may require
Doubtless his failure
do
so
construed. Because
the trustees Leon Mitchell
justify
him to
his
and Vick
administration
Mitch
ell
good faith,
acted in
on
but that is
the advice of
now
counsel, based on
Zea,
grounds,
before us.
In
reasonable
Thornton v.
Tex.Civ.
administering
did,
App.,
they
the trust as
page
.it
S.W.
at
'it was
can
not be said as a matter of
said of the trustee that
law that
he did have the
wrongfully or
duty
apply
negligently
failed also to
and this statément has been
request
repeated.
Cooke,
See Shindler
instructions from the
v.
Tex.Civ.
court and
App.,
statements,
we are to
protection, right and the We conclude that the *13 Estate, attorney’s right fee incurred of
or their to an Richmond and In re Gartenlaub’s supra, Butler, doing.' supra, and in in so Butler v. which the ought trustees to be allowed their only' generali attorney’s fee, that charge It is evident and was authorized to estate, drawn the broadest kind can be this zations of fee to the entire trust remain- tenants, is, authorities which we have cited. from dermen as well life that However, principal conclude that whether a the of the estate. attorney’s be awarded an trustee should involving defending a suit his ad fee for The incidental considerations upon depends equi ministration of the trust which we referred are these: Should (1) considerations, case must that each table the fee charg awarded the trial court be facts, be its own that decided ed to the life tenants instead of to the en of the trustee in the failure success point tire estate? In 6 the remaindermen may be a matter be consid litigation say that if this should be done necessarily determine the ered does awarded the trustees because “such serv fee, to the and that the trus right trustee’s ices were for the benefit of the life bene good faith and the reasonableness tee’s ficiaries”; and this is the burden of their considered, are matters to his actions argument. stated, they say: Thus “As good faith and rea when at least views of the attorneys trustees and their attempt caused the trustee to sonableness were those of the They life beneficiaries. duty which one performance so would right their established to month performed. ought to have Of minded ly royalty payments, they defended course, single fact that the trustee personal their liability own for re duty something to do will it his
thinks payment past royalties already paid out. fee, him his- nor under necessarily give The income from trust goes to these circumstances,. though ordinary not in all they life Since tenants. caused the law Estate) in Re Sellers’ will the (as cases misconception law, their of the their concern has made mistake fact that he charged, fees should be if at law of trust's and'trustees. ing the-general all, to trust income.” However, apparent Zaring from v. Point 6 is supra, ambiguity overruled. The Zaring, that trial'court was at least authorized to trust is a circumstance to life ten- declaration find ants did not causé the in the trustee’s favor. trustees Leon Mitch- be considered'
ell and Vick Mitchell to construe the will royalties 'out they .and There are some incidental mat or to' follow the course action in and yet discussed, ters to be but it is our' con respecting Mitchell v. -Mitchell which clusion, which we announce at Instead, (cid:127) did follow. the trial court was point, that the facts concerning to find that authorized the trustees’ deci- the actions of trustees Leon Mitchell ' sion was their Further, own.' is, according to good and Vick their the information us, before faith, the life ten- actions, the reasonableness of their ants were not to Mitchell counsel, v. Mitch- their reliance advice of their further, ell. Still performance trial attempt duty, of a au- find, ambiguity thorized to as we will as the have already source stat- ed, actions, court, Mitchell the -trial v. of their on the ba Mitchell the trus- purported tees equitable considerations, sis of act as trustees, was au view thorized to to act for v. Mitchell the entire trust estate and not concerning one administration of one class of beneficiaries at the ex- trust estate such as pense those involved in of the other. We think it immate- Estate; Styler; Re Sellers’ Crowell v. rial under In these circumstances Estate; re Wanamaker’s Trust position Zaring gave trustees’ the life tenants re- something away which it took from the .the estate? We think n not. The maindermen; incident but an Court the trustees’ states attorneys construction of the will. the remaindermen’s had intervened in Mitchell Mitchell [151 (2) given should' be What effect Tex. sought S.W.2d “and 803] failure of Leon and Vick rights have their in the suit determined This has ask instructions? protected”, and we infer been discussed. award the fee is to be referred to this *14 appellees, intervention. note that in (3) given What effect be should brief, their second state that the' trustees personal interest which the trustees Leon Mitchell and Vick did Mitchell will, had under that the fact pray for attorney’s an fee in Mitchell v. of as members the class of life ten . Mitchell ants, Mitchell Vick the trustees Leon Mitchell received a benefit under their con of remaindermen as Point expense of of struction the will signs as error fee which remaindermen? Under circumstances the trial judgment court’s awarded and personal given no effect is to inter be ordered from the was estate for Leon est Mitchell Vick Mitchell. which, Services were rendered for Leon question might This interest well bear on a Mitchell and Vick Mitchell as individuals concerning good faith Leon Mitch and not as point trustees. -This is based ell Vick but since the trial on testimony that counsel for said trus justified finding was in trus tees filed answer for them in Mitchell faith, trustees, in good tees as their acted in capacity Mitchell of individuals as personal except, is interest not material well inas that of trusteés. Of course the public perhaps, policy, on some trust estate is not liable for services ren think For and we there none. the trus dered Leon Mitchell and Vick tees Mitchell and Vick Mitchell Leon were their capacity, individual but as we con but two several life tenants and owned strue the evidence the trial court interest; minority the will names life as compensation awarded for services in be ten tenants children the descendants half Leon Mitchell and Vick Mitchell It be of another child. cannot said aas capacity their as trustees. The only lia rep law matter of trustees were bility to the remaindermen which Leon resenting either themselves or the life Mitchell and Vick Mitchell had as purely tenants; duty carry the trustees had money individuals was for received out execute the declaration of trust ' as life tenants. Their obligation to the incidentally though even benefited remaindermen to royalties account for and the life themselves tenants. they, trustees, as paid to the class of life tenants (including themselves) and (4) There evidence that liability their to surcharge money for this represented lawyers who Leon Mitchell and are elements of liability trustees, their as Mitchell in Mitchell Mitchell individuals, not as and the services of personal responsibil coun for the not contract for Leon Mitchell sel and Vick ity those trustees contracted to look which, might said, it were referable the assets of the estate for their fee. to account surcharge were services this immaterial We think issue un rendered in behalf of Leon Mitchell and der consideration. trustees, Vick Mitchell as which, under conclusions, (5) The mandate of our said trustees were entitled attorney’s Mitchell v. Mitchell directs to an fee out Court of the estate. The show, stated, to assess fee does as trial court a. the evidence that counsel behalf, attorneys for said trüstees filed an trust estate answer for them implied Was this an trustees and individuals, remaindermen. ad both attorneys judication nothing trustees’ were there is to show that this answer liability tenants, apárt ney’s single as life fee and in its Error covered the Point of the other American assigns from that as trustees. Since National Bank also parties to Mitchell error life tenants were not order. These Points liability as life filed judgment and since the because the review v. Mitchell purports material to the remainder- affirm ténants valid this declare order, liability but the can an men broader because stand independent decree, be inferred surcharge, rendered in inde- pendent suit, liability regardless validity as life tenants order, Mitchell. The cross the claimed in Mitchell v. and these Points mate- are not of Leon Mitchell counsel rial because of our examination conclusion that F. 18 and 19 properly for the remaindermen at S. awarded. We money for which Leon note that according indicates that to recitations in this attacked, was judgment and Vick Mitchell sued have not been royalties paid out all parties necessary joined amount the total have been *15 $100,000, by them, joined, the not much including that the those before the court $16,000 $20,000 which re- smaller when the order was 46 rendered. See Tr. tenants, However, thus ceived life and indicates and we will as 47. discuss these liability surcharge not necessary the and Points so far as is to deter- life was liability the tenants involved July mine whether the order of 14th bound testimony There is in Mitchell Mitchell. the v. remaindermen. leading by the counsel for'Leon Mitchell Remaindermen’s Points 1 2 he, and are to Mitchell which indicates- that and Vick the July effect the order of cocounsel, 14th was purported to act and thus his passed void because was in Mitchell v. and Vick Mitchell as trus- Leon Mitchell Mitchell after mandate had been testimony in his on the trial returned tees: Thus the they say Court represented from and said: “I he once of this cause mandate this did not authorize order. and Vick Mitchell Trus- Mitchell this Leon If agree we with remaindermen the July The order estate.” tees the order, mandate did authorize nev- first assessed- 14th which prior decree of only ertheless awarding trial court be construed fee can in Mitchell v. Mitchell dated (or 5th to Leon and Vick fee for services June trustees, 11th) contains statements note we that this indicate Mitchell as and trial- court taken $1,500 over the paid order states Mr. estate, administration the trust- and there for his services in the trial Cain court on is nothing to anybody show that has ob- trial of Mitchell v. Mitchell in that court jected to If these this action. circumstanc- $1,500 is a reasonable “that fee to be es make 1 also Points Chap 2 immaterial the Hon. B. Cain for the serv- (and express no ques- Chap ices rendered the said B. Cain n tion) then remaindermen’s Points 3 and 4 to the Amelia Mitchell trust Mr. estate.” appellees’ would become material if rights employed by the Cain was counsel for depended July order 14th. The Leon Mitchell whose only evidence shows that just trustees to, Leon testimony we referred if Mitchell and Vick Mitchell and their coun- Cain for Mr. which the services sel before the trial court 14th when that July. assessed a order of fee were heard -the motion- on such, or- and this trustees'as the order July der of 14th was (unless based implies, would said one infer- services vicariously represented trustees for which the the re- per counsel 10 of other cent maindermen) and that no notice is- were of was assessed the same sort. fee was sued under motion and given none was is therefore overruled. Point 7 any beneficiary. The evidence would not 1, 2, 3, any 4 support finding their Points In- the re- the beneficia- assign error than ries other Leon maindermen order Mitchell and Vick assessed knew" which .first the attor- Mitchell July 14th motion before it
225
one;
proceeding
adversary
trial court
Assuming
was
heard.
order,
fact, purports
administra-
charge
grant
a motion
effectively took
necessary
to make
and Vick
trustees Leon
tion
was it
this motion
not an in
proceeding
The
the remaindermen
Mitchell.
dependent
How does
notice of it?
to have been
give
and to
them
seems
presentation
the order of
do so affect
of a claim to a court
failure to
engaged
administering
July 14th?
a trust.
re-
maindermen,
then,
be,
ought not
Equity
procedure
jurisdiction
practice
we hold that under the
we are
sufficiently explain
affected
statute
considering they
were not bound
676,
following:
(1)
ed
65
Sec.
C.J.
14th,
proceed
of July
because the
538;
539;
220,
p. 677,
54
Sec.
Am.Jur.
ing
rights
14th involved
628;
282;
484,
p.
(2)
279;
Sec.
Sec.
Sec.
remaindermen
Maryland
opinions concerning
prac
trustees’
interest
inconsistent with that
Abell,
44,
71,
tice :
75
23 A.
Abell v.
Md.
remaindermen.
In addition to the
389;
Trust,
25 A.
Mercantile
Gottschalk v.
cited,
Bogert
authorities
see
on Trusts and
810;
etc.,
521,
Co.,
62
102 Md.
A.
White Trustees,
593,
Sec,
2, p. 60,
Vol.
Part
241;
Dorsey,
88 A.
lock v.
Md.
et seq.; 9
10.
A.L.R.2d
596;
Kahn,
Baer
Md.
A.
single
American National Bank’s
Mewshaw, 147 Md.
Kramme v.
Point
assigns
of Error
as error that
468; McCrory
Beeler,
155 Md.
A.
order of
14th
binding upon
was not
*16
587;
Johnson,
Md.
142 A.
v.
168
Johnson
the beneficiaries of the trust because of
Lucas,
831;
Md.
Kiser
170
179 A.
v.
provisions
Act,
certain
of the
Texas
441;
League
185
Art Students’
A.
Vernon’s
seq.,
Ann.Civ.St.
7425b-1 et
art.
D.C.,
affirmed,
Hinkley,
4
31 F.2d
proceeding
July
which the
of
14th did not
225;
Cir.,
see:
(3)
and
Scovill
F.2d
comply with, and the Bank’s argument also
286;
Scovill,
323, 4
191 S.E.
S.E.2d
points out
the inconsistency of interest
306;
Cannon,
94, 182
Hood v.
178 S.C.
S.E.
between trustees and remaindermen. The
Lawson,
752, 244
re Will
215 Iowa
In
of
Bank and the
disagree
remaindermen
about
N.W.
the reason stated our namely, judgment the under was review agree with the Bank that independent rendered in an The at suit. 19 24 applicability of Sections the upon the tacks made because by the fact that the trust was affected not parties were omitted are considered Act, certain the before Texas name created and are hereinafter overruled. We retract seq., et was enacted. ly, Article 7425b-l original opinion in our position Raymond statements concern of to be the It seems authority part a lack of ah, ing of of the et no Article court, parties, trial because of omission of applies to trusts created it before 7425b pass July of enacted; ques the order 14th. The but Sections 19 and 24 of was to the trial court pertain to matters which material and to have tions this statute this are, whether this order connection with the date court bound logical when no beneficiaries, not, if it did then was created. The limitation wheth trust attorneys’ operation actually fee is placed of owed er would be by Raymond Mitchell, Trust. Sections July of effect, then, not, court’s July What the order order of 14th need Greenway, 22 Tex. ought any 14th indeed given greater have? Seawell not to be present term effect in decided at Galveston given than was of' the cited, of administration order an instance decision for the There opinion, a trust court. the reasons stated in original the district our creditors, namely, was for trust the benefit of interests of powers a and exercising of concerning pay- court was remaindermen proceeding equity ment attorneys’ appellees court and was fee to a statute statute. The earliest we inconsistent. In our original assignments only regulating holding respects found practice equity independent statute, creditors the Act of March 1879. n G.L.1879, p. art. we now make Ann.Civ.St. holding generally Vernon’s seq. regards cited, In the trial such a proceeding et the case as that approved by 14th. inconsistency interests, court had in a claim term time with- equitable out the the trustee for a on his usual grounds credit account of of attack money judgments, final sum of stolen which had been enough alone him, from authorize the and for on this court a commission to reconsider the mer- its money; attorneys’ and, but at the next term the court if the fee be owing, found not objections entertained claim and set aside the order of July 14th and appeal deny disallowed it. On recovery order of the at- torneys’ fee. The argued disallowance trustee that-the trial court erred in hold- ing that original the order allowing order claim his could 14th bound the beneficiaries as a be set aside at a later term and that final judgment on the merits conclusively party this order binds a right established his to suit. held, to the credit. The Court This conclusion, course, however, ap- does properly trial court had ply actions, to suits and and it does original set aside the not re- allowing order quire that the beneficiaries of the Said the claim. Court: proceedings “The Trust be made court, every pre- claim in the administration of the sented in the trial were, court part, while that court parte. for the most ex may be engaged in the exercising The Court was administration of powers Trust; our chancery, court conclusion very means proper and was parte an ex allowing passing to consider all orders the accounts claim payable trustee, out nisi, judgments orders *18 Mitchell Trust does necessarily subject bar the to be set inquiry aside future through beneficiaries principles into the correctness of of the accounts. It finality judgments, of judicata,-or res competent court, for es- in the admin toppel by judgment from trust, proceed contesting of istration to such claim allowed. If on a beneficiary’s convenience, as1 con- manner best suited its own test the claim be one, to proper found a agents the convenience who as fail; the contest will but claimant or trus- sisted court in the administration of tee depend have to on all, in and above such merits of manner as defense, the claim a for object best would attain the instead to accom on principles finality plished, just which was the fair and of judgments, ju- admin res dicata, estoppel' or judgment; istration the trust estate for the benefit and un- less genuine question there is a creditors.” about the apparent claim it is not to us that a trus- any
This decision shows
tee
that an ex
needs
other defense. The situation
of the district
parte
allowing
order
here is like that stated. The order
July
expressed
in the administration
a
a claim
trust 14th
the trial court’s consent that
necessarily final in the sense
is not
trustees of the Mitchell Trust pay
that.it
aside
disregarded
attorneys’
be set
or
a
cannot
fee and thus authorized them,
term, and we think that
the trial a's far as the court
concerned,
later
pay
-
record;
only part,
subsequent at-
the record
fee;
regards
as
a
attorneys’
(except
pleadings
persons other
fee
some
tack
on the
than
appellees)
the Mitch-
which
to show
beneficiary,
the trustees of
tends
persons
such
these
14th was
as are mentioned in
Trust,
July
the order of
after
.ell
grounds actually
provision
two
on the
exist is
made,
dependent for
defense
fee,
of the trial
appointing
court’s
the claim for the
merits of
actual
guardian
Morris
litem
con-
ad
minor con
on the
for
determined
beneficiaries’
course,
tingent
this,
ap
remaindermen as a
And
class and
testing the claim.
pointing
representative
him
appellees’
existing
argument
one answer to
(and future)
July
remaindermen not
14th
the beneficia-
entitled
the order of
bound
income,
However,
trus-
as a class.
in defer
the Mitchell
because
ries of
provision
to this
ence
tees,
consent,
author-
assume that such
the court’s
had
with
persons,
they
namely, contingent remaindermen
ity
for
which
a claim
services
income,
not now entitled to
It
authority
engage.
is no con-
do exist.
There
persons
is not at
are
all clear that
these
original
between
conclusion that
flict
our
persons
authority
not included in the
shown
the trustees had
to contract
attorneys
evidence at
and 4 to
appellee
and our
F. 3
be beneficiaries
S.
services of
Trust;
purport
tes
but the
of this
the order of
14th did
conclusion that
timony
be, and
the fee
seems to
we will construe
subsequent
bar a
attack
a,
showing,
persons,
these
are
party to the
who
beneficiary
who
(other
the ones
than
named as
proceeding
Morris)
Mr.
14th.
petition,
in the Bank’s
all of
defendants
proceed
consider the motions for
whom were served
citation
with
rehearing.
original petition,
par
Bank’s
existing
ticular
beneficiaries
then
who were
by appel-
Ground
of the motion filed
I
entitled
income. We infer from the na
Raymond Mitchell,
al., .assigns as
lants
et
appointment,
ture of
Morris’
Mr.
fundamental
minor remain-
error
“the
persons
seems to refer
not otherwise
appointed
dermen” for whom Morris was
.named,
persons
he was
whom
.for
.the
indispensable par-
guardian ad litem were
appointed guardian ad litem were not of
the attor-
present
suit because
ties to
If our
the evi
this class.
construction of
neys’
property
will be
out of
4 is right,
dence at S.
3 and
then the
F.
interest,
but that said
have an
pleadings
the contingent
remain-
show
served
citation and
minors were not
with
dermen not entitled to income were not
jurisdiction
brought within the
were not
parties,
individually
named as
either
or
court.
It
not clear to us that
class,
any pleading,
and thus were not
appellants except
group
any'of
Mr.
suit,
and did not
become
any
subject
mat-
has
interest
Morris
there was
no basis
the trial court’s
ground,
Morris does
ter of
Mr.
appointing
guardian
Morris their
Mr.
have such an interest.
representative. Mr. Morris was sued as
assigns
Ground IV of the Bank’s motion
guardian
appointment
ad litem before his
*19
judgment
as error to our
that none of the in this suit
the minors
were not sued
contingent
remaindermen and
class,
beneficiaries
independently
individually
as a
nor
were not
receive distribu-
who
entitled.t.o
if our
right.
conclusions above are
This
Trust when the action
tion
was procedure
parties
did not make these minors
parties to
were made
this suit and did
filed
the suit
them
give
to
or
notice of the suit.
parties and
not
become
were
served
not
appointment
Morris’
Mr.
in the suit of
citation,
persons
said
were
with
Mitchell v. Mitchell did not
him
authorize
necessary
judgment
if such
parties
a
appear
capacity
present
in that
in the
was to be
under review
rendered.
suit,
independent
which is an
proceeding,
only in
Thus,
not
form but
in issue.
.also
Jones,
Wright
Tex.Com.App.,
grounds
given
are to be
v.
52
If these
S.
247,
effect,
page-251,
at
it is
guard
must
a basis in
W.2d
“A
any
have
said:
contract;
Bank’s
and the
recognized
of this
formance
friend
or next
ian
litem
ad
implies
petition
this.
original
his
at least
purposes;
specific
only
certain
for
by
(as
suit
prosecution
such a claim
connected
matters
powers
limited
are
presentation of
(22
appointed
distinguished from
he is
in which
suit
with the
trust, dis-
right
administering
a
claim to a court
do not include
Gyc. 661) and
19,
constructively
regulated
Section
in cussed above) is
actually or
appear either
**
7425b,
according
And
to this stat-
Article
a cross-action
answer to
indispensable
only
parties defend-
Indemnity Co. v.
&
ute the
Accident
Hartford
see
420;
510,
named
(by
mean those to be
Proctor,
App.Div.
201 N.Y.S.
ant
which we
398,
Adm’r,
Ky.
pleading)
192 S. in
for
a
demand
Shaw Shaw’s
Kruckenberg,
appellee attorneys
171 Kan.
524;
were the
Meairs v.
W.
525;
472,
Waitt
Trust. The beneficiaries
A.L.R.2d
of the Mitchell
233 P.2d
necessary parties.
60 N.E.2d
All of the
Badger, 318 Mass.
were not
parties- to this
trustees mentioned were
page
380.
them,
suit, and two of
Leon Mitchell and
for re-
the Bank’s motion
Ground III of
filed
defendants and
were
assigns as error that some of
hearing
per-
pleading showing their
consesnt
petition,
Bank’s
named in the
defendants
formance
the order of
14th. Thus
peti-
on that
although served with citation
parties required
Article
Section
tion,
never served
not answer and were
did
7425b,
parties
pleading
to be named as
in a
thus, with
any
pleading, and
with
attorneys
if the
fee;
pleading demanding the
no
against the-Trust collectible out of .assets
argues
Bank
II the
and under Ground
parties
suit.
in the cause were
citations issued
Furthermore,
to the extent
these
original petition and that this
issued on its
grounds assign a lack of
cita-
service of
appel-
petition
put
right
upon
tion
beneficiaries as error
also
we
attorneys
fee in
lee
to the
issue.
them. The beneficiaries were
overrule
necessary
to the
and the
fail-
grounds
that these
To
extent
upon
them with
ure to serve
citation
arguments
statements and
there
and the
attorneys’
appellee
demand for their .fee
grounds,
argu
(and
the other
pleading putting the.validity
thereunder, made
the first time
ments
issue, if
original
that fee in
the Bank’s
rehearing)
motions for
raise attacks
petition
(and
did not
we think that
judgment,
will treat
on the trial court’s
necessarily did), was
material. The
parties’
amendments of the
briefs.
them as
original petition gave
Bank’s
notice that
do this
We are authorized to
since
the merits of the fee were involved be-
was tried
the court without
cause
shows,
cause
pleading
necessary im-
jury
no motion for
was nec
new trial
plication
in many
if not
so
words, that the
431;
essary and none was filed. See T.R.
appellees’ right to the fee was being dis-
Gomez,
Cities Gas
Texas
Co. v.
Tex.Civ.
puted-
.parties
omitted
-pro-
from the
74;
App., 160 S.W.2d
Gillette Motor
ceeding
14th.
Wichita,
Transport
Co.,
Co. v.
& S. R.
F.
Also,
Tex.Civ.App.,
contained so does the Biggs was petition. changes adopted by appellee Various amended attorneys and it paragraphs prayer 7 and 8 were facts alleges reason of which the fee petition. para- in the amended In attorneys claimed behalf of said alleged prayer Bank graph request substance that concludes with for necessary were judgment omitted from the that Leon Mitchell and Vick 14th proceeding and therefore the Mitchell were authorized to employ counsel voidable; July 14th was “by order of void or and that reason employment of their - - represent some Biggs beneficiaries were now so claim- R. E. said Trust - - ing claiming and were further the the said Trust became liable for their - pay not authorized to Biggs the indebtedness to R. E. for a reason- - fee; attorneys’ and that before Bank the able himself with a (termed “judgment”) or “the attor- sufficient sum” to the other counsel neys fee therein decreed Biggs employed. due and whom Mr. It was necessary payable” it was response the Bank in Bank, pleading adjudicated “have and determined that itself a styling cross-defendant styling judgment payment of said Biggs appellee Mr. and other attorneys attorneys’ or of fees cross-plaintiffs, answer, therein filed the mentioned and payable, above, subjoined decreed to due out of the orig- its first amended - things the Trust is in all funds of petition. author- Furthermore, inal in paragraph 3 n ized, proper Paragraph and valid.” answer, al- of their the trustees Leon Mitchell leges alleged reason of made in claims be- and Vick Mitchell the order appellees now half of “there exists a sub- July 14th was final “in the alterna- - - - dispute liability as to the stantial tive (if) court decide had not been - attorneys’ interest on said finally fully decided, fees these trustees payable the date same ordered petitioned the court to allow attorneys n - - July 14, judgment said 1952.” a reasonable fee for their services' prayer was that the Bank “have and show court that a reasonable at- *22 — expressed $47,- opinion was extension of an an torneys’ the sum fee would.be Lockney Egan in the sum- Powell awarded 311.35.” This '.was Justice Tex.Com.App., 284 Co-op. Soc., Farmers’ July 14th. thé order .of 937, 938, Har page at see S.W. also hand, paragraph 3 of the the other On lington Mo Land & Water v. Houston Co. appellant remaindermen filed answer Co., Tex.Com.App., tor Car 209 S.W. merits, alleging fee on the the attacked ap theory page at 146. Our was that the the defending in Mitchell v. that pellants’ suggested rehearing motions Mitchell and trustees Leon required investigation question the an in their own behalf acting “were gave us such as these information liability Trust” and tó the their own avoid parties’ motions briefs did not appellee attorneys the services that We were that contain. also of the belief support of an actually rendered in applying we had small in some discretion being held attempt prevent said trustees rule, inferring from discretion for funds which liable to holdings Egan opinion, 284 S.W. A at- out. similar wrongfully had' in Rogers, Cammack v. 96 Tex. fee merits of the was tack on page 73 S.W. that filed of tire answer paragraph VII in Appeals Court of Civil had a discretion Cormier, et al. Alphonsince assignment in an determining whether However, error we was sufficient. the Bank’s and those pleadings, These decided that we made use of the statement beneficiaries, appellees and of expression of facts which Powell’s put ques- in issue the together, Justice considered opinion did not authorize and for this owed, merely was not the fee tion whether we retract our holding reason of funda validity apart from the something grant appellees’ error and mental mo affecting 14th but as the order rehearing. tion for This re conclusion is, order. That validity that quires original judgment that our of affirm the order of 14th raised whether was ance be reinstated. the merits of the it good on claim was quoted language adjudicated. support Appellees, in of the trial court’s judgment is court’s limited the trial judgment, have called our attention specific attack and the any ground of the fact that the Court awarded that order of general determination fee in Mitchell v. Mitchell “valid, subsisting proper” July 14th all although beneficiaries were attorneys’ binding and that and was grounds suit. The to that on which paid pursuant said should order fee us, acted are known court meaning us as that will be taken purport the court did not to enforce a substance, in that good order obligation appellees contractual as the do good against owed, as well fee infer that here. We in awarded parties. lack made on attack granted v. Mitchell was on the principle having an that one interest appellees’ now to motion for We turn expenses fund is entitled to incurred by him first rehearing we con- rehearing. On in protecting the fund. not cited were beneficiaries cluded the suit now the notice of on entitled this, We will add there prescribed by is Subdivision appeal which misunderstanding be no about 7425b, V.A.T.S.,. 19, Article Section B of matter, conclusions stated our received this notice and that had not original were based and thus required error was fundamental opinion. limited to the facts related in judgment the trial court’s aside us to set judgment rendered first re- judg- cause. To this remand and to hearing aside, judgment is set filed ren- appellees a motion for re- ment reinstated, original on the hearing dered full. hearing not discuss .which the trial authority we had conclusion Our affirmed. fundamental error ground of act notes Sec. 476-a of the trus- Trusts, Perry the section cited tees Leon and Vick Mitchell to have, Zea, petitioned for not, Thornton show this. The Court instructions circumstances, Appeals City qualify Bank under the Farmers’ Trust right their Zaring; Mitchell Mitchell ground.in their Cohn Bank to stand v. Central National