Attorney-General ex rel. Abbot v. Town of Dublin
41 N.H. 91
N.H.
1860
Check Treatment
Bell, C. J.

By thе practice of the English chancery, where a will is so ambiguously expressеd as to make it proper for the executor to'take the direction of the court, if he has acted fairly, he will be allowed his costs out of the general estate. And the same rule is generally applied, where the action is brought by any party in interest. Jolliffe v. East, 3 Bro. C. C. 27; Ruddock v. Poole, 1 Jur. 980; King v. Strong, 9 Paige 94; Hawley v. James, 5 Paige 318; Smith v. Smith, 4 Paige 271; Sawyer v. Baldwin, 20 Pick. 378 ; Dan. Ch. Pr. 1573.

And if all proper parties are before thе court, the whole costs of the suit and of all parties, will be allowed out of the residuary portion of the estate. Floyd v. Barker, 1 *93Paige 480; Irving v. Dekay, 9 Paige 521; Lamphire v. Despard, 1 Con. & Law. 200; Miller v. Rowan, 5 Cl. & Fin. 99. If the fund in controversy has been separated from tbe residue of tbe estate, ‍‌‌​​​‌​​​​​‌‌​​​‌​‌‌‌​​​​‌​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​‍and paid over, tbe costs may then be allowed out of tbe fund in controversy. Morrill v. Dickey, 1 Johns. Ch. 153; Dunscomb v. Dunscomb, 1 Johns. Ch. 508; Rogers v. Ross, 4 Johns. Ch. 608 ; Chase v. Larkerman, 11 G. & J. 185 ; Depeyster v. Clendinning, 8 Paige 295; Ryall v. Hannam, 11 Jur. 76; Thomasson v. Moses, 5 Beav. 77; Attorney-General v. Carr, 4 Beav. 297; Dan. Ch. Pr. 1576.

These rules, as is said by Walworth, Ch., in King v. Strong, 9 Paige 100, are not indexible, but there are recognized exceptions, in which tbe costs may be apportioned among tbe owners of tbe different interests in litigation; others in which the costs will be сharged to the parties individually, and others, in which the parties will be left to beаr their own costs, according to the equities existing in particular cases.

The general rule which gives costs to the victorious party, and throws them upon the unsuccessful party, applies equally to cases in which the parties are suing, or defending in autre droit, and to those in which they are sui juris. Therefore executors, administrators or trustees, instituting or defеnding suits against strangers to their trusts, in those ‍‌‌​​​‌​​​​​‌‌​​​‌​‌‌‌​​​​‌​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​‍capacities, are subject to the same rules as to costs, as they would be if suing or defending in their own rights. Wesley v. Williamson, 2 Moll. 458; Kdwards v. Harvey, Coop. 39; Dan. Ch. Pr. 1521, 1564.

It is on this principle, it is hеld, that where a trustee has a private interest of his own, separate аnd distinct from the trust, and obliges the cestui que trust to come into court, merely to hear the рoint relating to his own private interest, he will be decreed to pay the whole costs. Henley v. Phillips, 2 Atk. 48; Dupont v. Johnson, 1 Bailey Eq. 279; Gardner v. Gardner, 6 Paige 455; Hunn v. Norton, *941 Hopk. 344. So where litigation has been caused by a claim op tbe part of an individual, ‍‌‌​​​‌​​​​​‌‌​​​‌​‌‌‌​​​​‌​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​‍which, was not sustained, such claimant may be personally charged with the costs. Smith v. Smith, 4 Paige 271; Cheney v. Mott, 5 L. J. (N. S.) ch. 165; or the costs may be apportioned, as in Mitchell v. Blain, 5 Paige 588.

So, too, though a legatee, filing a bill for his legacy, is said to be entitled to his сosts generally out of the estate ; yet this must be understood as applying to those cases only in which he is successful in the suit. If a person claims as legatee, and his bill is dismissed, he will not be entitled to his costs out of the testator’s estate, nоtwithstanding there is an ambiguity in the will, which renders it necessary to apply to the cоurt for its construction. Lister v. Sheringham, 1 Newland Ch. Pr. 397 ; Dan. Ch. Pr. 1571.

But it is said that in such cases, if considerable difficulties are invоlved, occasioned by conflicting decisions and the acts of the testаtor, the court will make ‍‌‌​​​‌​​​​​‌‌​​​‌​‌‌‌​​​​‌​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​‍each party pay his own costs, by ordering the dismissal to be without costs. So it will, also, where the plaintiff has a fair ground for making his claim. Cogan v. Stevens, Lewin on Trustees, Apx. II. 698; Brasbridge v. Woodruffe, 2 Atk. 69; Forbes v. Taylor, 1 Ves. Jr. 99.

Upon these views of the law on this subject, it does not seem to us that there is herе any just ground to charge the expenses of this litigation upon the fund in controversy. The action is brought by the plaintiffs for the purpose of recovering a private right to which they thought themselves entitled. They have failed to satisfy the court of the correctness of their construction of the will in question, and they consequently stand in the position of mere strangers, setting up a claim which they arе unable to support.

Though the court have the power, consistently with the dоctrines of the courts of equity, to dismiss the bill with*95out costs, yet tbe present does not seem to us to be a case calling for sucb a departure from tbe general rule, that costs follow tbe event of every action or petitiоn. It has been held that where a plaintiff ‍‌‌​​​‌​​​​​‌‌​​​‌​‌‌‌​​​​‌​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​‍has slept upon bis rights for a great number оf years, and has allowed tbe defendant to suppose that be would not enforce them, be will frequently, though successful, be deprived of costs; Anon, 2 Atk. 14; 2 Dan. Ch. Pr. 1589; Clifton v. Orchard, 1 Atk. 610; Pierce v. Newlyn, 3 Mad. 186; Guest v. Humphray, 5 Ves. 818; much more would it seem that if unsuccessful be would have no claim to be exempted from costs. Here it is apparent that tbe great difficulty in giving a construction to this will has resulted from tbe obscurity thrown over tbe facts and attendant circumstances by tbe lapse of nearly forty years.

The motion is denied, and the plaintiffs charged with costs.