73 Fla. 1120 | Fla. | 1917
—On .August 27th, 1914, The Bay Biscayne Company, 'a corporation, filed its bill
In September, 1914, the said defendant, J. C. Baile, filed his answer denying that the complainant was the owner of the note and mortgage described in the bill of complaint, and alleging that the said note and mortgage had been transferred to the defendant, Baile, in trust for the benefit of Georgiana Carhart. The answer deals with other matters mentioned in the bill of complaint such as the effort to procure a loan, and the complainant having' the note and mortgage in certain banks. The defendant, Baile, further answers that he was duly and regularly authorized by the complainant to transact all of the business affairs as he had done since the attempted organization of the corporation, and that he had a due and regular power of attorney from the said corporation to transact all of its "business. The answer further alleges that the complainant is, to all intents and purposes, W. B. Ogden, who owns all of the' stock in the corporation, except the neces-'
On the same date, August 27th, 1914, The Bay Biscayne Company filed a bill in equity in the Circuit Court of Dade County, same being, the above named case 2041, which bill of complaint, in so far as the material parts are concerned, alleges that J. C. JBaile was one of the incorportators of the complainant company, and that in transactions on behalf of the company, he procured title to certain described lands in Dade County, paying Fifteen hundred dollars for same with funds furnished by W. B. Ogden, the president of the company, and title was taken in the name of J. C. Baile, although, in fact, the land was the property of the complainant corporation. That J. C. Baile and his wife sold and conveyed the land to one E. B. Douglas for the sum of Four thousand, Five hundred dollars. That Five hundred dollars was paid in cash and the remainder of the purchase money was evidenced by four promissory notes aggregating Four- thousand dollars, executed by the said Douglas to the said J. C. Baile, and a mortgage was executed on the lands to secure the payment of the principal and interest of said notes. The notes and mortgage were taken in the name of J. C. Baile. The bill alleges that the lands were held in trust by Baile for the complainant, and that the notes and mortgage securing the payment of the purchase money were held in trust by Baile for the benefit of the complainant. The bill alleges further that Baile was a stock-holder and vice-president of the complainant company, and sold and transferred his stock, and thereafter, had no interest or connection with the said notes and mortgage other than as trustee for the complainant. That the complainant demanded of said Baile that he transfer the said notes and mortgage to the complainant, but that said J. C. Baile
On the nth day of November, 1914, the defendant, J. C. Baile, filed his answer, and the salient points therein are that he admits having the property mentioned, but alleges that it is the property of W. B. Ogden, who contributed the entire purchase price, and he denies that he agreed to hold said property in trust for the complainant. He admits transferring or conveying the property of E. B. Douglas for the consideration alleged, and admits that the notes and mortgage were made to him under and by •the directions of Ogden, himself. In his answer he alleges that the said Douglas notes and mortgage were held \>j him as trustee for one Georgiana Carhart; the terms of the trust being the same as shown in the answer filed to the- bill in case No. 2040. The answer also alleges that it was at the suggestion' of 'the complainant that these said Douglas notes and mortgage were included as a part of the trust security to be held for the benefit of Georgia ana Carhart, and denied holding the said notes and mortgage for the said Ogden.
On the 27th day of August, 1914, W. B. Ogxlen filed a bill of complaint in the Circuit Court in and for Dade County, Florida, against J. C. Baile,' J. W. Watson, and his wife, Cora-Watosn, Abba Miller Otstott and her husband, E. W. Otstott, as defendants, same being case No. 2042 above mentioned, in which the complainant, W. B. Ogden, alleges, among other things, that on the 1 ith day
Note dated July 22nd,' 1912, made by J. W. Watson and his wife, Cora AYatson, in the sum of four thousand dollars, payable to the order of W. B. Ogden five years after date, with interest from date until paid at the rate of eight per cent per annum, payable semi-annually, etc.,, which note was secured by mortgage of same date executed by the saicj J. W. Watson, and his wife, Cora AVatson, as mortgagors to the said complainant covering and embracing certain described lands; also certain notes made by Edward Otstott, and his wife, Abba Miller Otstott, to the complainant secured by a mortgage on real estate. The bill further alleges that said notes and mortgage were kept as investments, and the other allegations of the bill are practically the same as the allegations of the first bill of complaint above mentioned in suit No, 2040, and prays for an-injunction ag'ainst Baile and against Watson and wife and Otstott and wife from paying Baile any of the principal and interest; and prays also for a receiver, and an acounting.
On the 26th day of August, 1914, the court commissioner, H. P. Branning, upon a certificate of illness of the Judge of the said Circuit, granted an injunction or restraining order in the said suit of W. B. Ogden against J. C. Baile, J. W. Watson, and his wife, Cora Watson, and Abba Miller Otstott, and her husband, E. W. Otstott, and therein restrained and enjoined the defendant, Baile, until the 14th day of September, 1914, from selling, trans•ferring, assigning, pledging-, hypothecating, or in any manner disposing of all or any part or portion of the promissory notes and mortgages described hereinabove. The other defendants were also enjoined from paying
On the 14th day of December, 1914, the defendant, J. C. Baile, answered the said bill of complaint filed against him and J. W. Watson and Cora Watson, Abba Miller Otstott, and E. W. Otstott, and denies that on the nth day of May, 1914, the complainant wasThe owner of the promissory notes and mortgages described in the bill of complaint, but avers that on the contrary, the said notes and mortgages had for a long time prior to that date been in the possession of the said J. C. Baile, and held by him in trust for the benefit of one Georgiana Carhart, and denies therefore, that the complainant was entitled to the posession of the said notes and mortgage at the time of the filing of the bill of complaint. The answer admits that the said notes were taken to the Miami Bank and Trust Company for the purpose of obtaining' a loan, and that the complainant turned over to the defendant all the details in connection with negotiating said loan for the complainant, but the loan was not obtained. The answer also avers that the complainant has not, for many years passed, been actively engaged in business, and that the defendant, J. C. Baile, for six years had been the business representative of the complainant, and had carried on all of complainant’s business transactions, acting- as his agent, and as a mark of his confidence in the defendant, executed to the defendant, Baile, a full power of attorney, and under such power of attorney, the defendant, Baile, signed papers in the name of complainant, made notes, negotiated loans, and gave instructions in all business details in which the complainant was in
The answer also alleged that he held all of these papers in trust to collect the interest thereon, and to pay to Georgiana Carhart the sum of twelve hundred dollars per annum, so long as she might live and remain dependent, and that at her death or her ceasing to be dependent, the whole of said securities, or their equivalent in cash, or other securities, should be returned to the complainant. That said trust was made for a good and valuable consideration passing from the said Georgiana Carhart to the complainant for services rendered as housekeeper for the complainant for more than twelve years last past, and that this defendant, Baile, accepted said, trust by directions of the complainant and cestui que trust, and that he is now performing said trust in accordance with its terms. He further alleges that he could not now surrender the securities without violating 'the terms of the trust agreement, and without leaving himself liable for a suit for
On the 14th day of September, 1914, the defendant J. C. Baile, filed his motion to dissolve this temporary injunction which was accompained by affidavits in support of same.
On the 17th day of September, '1914, the judge of the Third Judicial Circuit made an order dissolving the preliminary injunction, and denying the application, for the appointment of a receiver. However, on the 23rd day of October, 1914, the same Judge made an order appointing a receiver and requiring Baile to- deliver the said notes and mortgages to the receiver; as well as to- show the amount collected by him up to1 the date that he should deliver the notes and mortgage to the receiver. The complainant entered his appeal to this Court from the order of the Circuit Judge denying the motion to dissolve the temporary injunction. This Court said “There was no er
On the 12 th day of July, 1915, the trial judge made an order refusing to allow the defendant to set down the case on bill and answer, but allowed the complainant to file a replication; and in the same order decreed that J. B. Clemmons be appointed Special Master to take testimony of the respective parties to the cause concerning all issues involved, if there be any remaining unsettled. This order was made by Judge Branning- of the Eleventh- Circuit, who granted the preliminary injunction.
On the 12th day of July, 19x5, the complainant, W. B. Ogden, filed a motion in this case setting up in substance the different steps taken in this proceeding from the time of the filing of the bill of complaint to the time of the affirmance by this Court of the order of the chancellor refusing to dissolve the injunction, in which motion it was stated that since the ruling of this Court, the said Georgiana Carhart by a certain written instrument had, for a valuable consideration, released, conveyed, assigned, transferred, and set over all and singular the notes therein, they being the same notes involved in this suit, belonging to the complainant, and ordered and requested that the said notes be instantly delivered to the complainant. . The motion asked the Court, for an order requiring the receiver to turn over and deliver to the complainant the said notes and mortgage described in the bill.
On the 6th day of July, 1915, the defendant, J. C. Baile, filed a petition in the three cases setting forth the existence of the trust, and the attack on same, his employment of counsel to defend and protect the trust, and asked for counsel fees and expense money, as -well as further asking the Court to fix the amount of a reasonable attorney’s fee, and requiring the receiver to hold the se
On the ioth day of July, 1915, the Judge of the Court below made an order denying the application of the complainant to require the receiver to return to complainant the securities described in the bill of complaint, in which order the Court stated “And it appearing to the Court . that the cestui que trust has filed her disclaimer, or renoucement, in writing, whereby it appears that she has no further interest in the subject matter of the litigation, and is desirous of having this suit dismissed, but it further appearing to the Court that the costs, charges and expenses, including* attorney’s fee incurred by J. C. Baile in defending the trust in this cause have not been paid; arid it appearing to the Court, that the said J. C. Baile, as trustee, should be paid out of said securities the expenses incurred by him, including attorney’s fees, for which he has become liable in defending- said trust, to which ruling the complainant excepts. It is therefore ordered, adjudged, and decreed by the Court that the said petition be, and the same is hereby denied, and it is directed by the Court that the said securities described in the bill of complaint in this cause be .retained by the receiver until it appears to this Court thát the proper costs, charges, and expenses, incurred by said J. C. Baile in defending the trust, be paid, or until the further order of this Court, to which ruling the complainant excepts, it is further ordered that J. B. Clemmons, an attorney of Miami, Florida, be and he is hereby apbinted Special Examiner to take the testimony of witnesses to determine the proper amount to be allowed J. C. Baile for his costs, charges, and' expenses, including attorney’s fees, in his behalf.”
On February nth, 19x6, the Special Examiner filed in
On the 18th of February, 1916, counsel for defendant served on counsel for complainant notice of final hearing.
On the 7th day of April, 1916, the court below made a decree, in which, by consent of counsel, the three cases were consolidated into one by reason of the fact that the interests were identical, and the testimony the same. The court further ordered and decreed that there was a trust estate created for Georgiana Carhart, as asserted by J. C. Baile, to the amount of fifteen thousand dollars; that the creator of the trust, W. B. Ogden, endeavored to repudiate the same by legal action, and that it was necessary that J. C. Baile, the trustee, employ counsel to protect the same, and that the said counsel employed by the said J. C. Baile, did effectually protect the same. The decree also granted the petition for counsel, fees, costs, and disbursements and decreed the amount of three thousand dollars as a reasonable fee to be allowed the defendant, which fee was decreed to be a lien on the said property in the possession of the receiver. The decree further provided that the said W. B. Ogden and The Bay Biscayne Company pay the amount of the said attorney’s fee, costs, and expenses, instanter out of the funds and securities in the hands of the receiver, and the receiver was further directed to turn over and surrender to W. B. Ogden and The Bay Biscayne Company all surplus in securities above fifteen thousand dollars par value in his hands. The decree further provided that petitioner should render an accounting to the complainant herein of all monies received since the creation of the trust up to and including the date of the issuance of the preliminary injunction. And the receiver was directed to retain in his possession the amount of fif
On the 7'th day of April-the court made a further or supplemental decree in the said consolidated cases, in which it decreed that “It appearing to the court from an examination of the files and records in said cause, and from testimony taken before the Master, that the said complainants have not shown when said J. C. Baile obtained possession of the securities, notes and mortgages ■mentioned in the said bills of complaint, and not having shown from the testimony taken in said cause, that he collected any monies prior to the date of said trust agreement, to which the complainants, or either of them, are entitled, it is therefore ordered, adjudged, and decreed that the petition for an accounting from J. C. Baile to the ■complainants, prior to date of said trust agreement, is hereby denied without prejudice, however, to the complainants to file a new action for such accounting if entitled thereto.” The Court in said decree made an order that the trust be cancelled and terminated by reason' of the fact that since the institution of the suits Georgiana Carhart had signed a release of all of her rights in the notes and mortgages mentioned in the bill of complaint. This decree further provides that upon complainants entering into a bond in the sum of thirty-five hundred dollars, that the receiver should deliver to the complainants, or their solicitors, all of the notes and mortgages mentioned in the said bill of complaint, together with all sums of money collected thereon, except so much of said notes and mortgages as will aggregate the sum of fifteen thousand dollars, and less the fees and disbursements to be allowed receiver by this court. .There was contained in said decree a further order that unless a supersedeas bond' was given, and unless the 'receiver should pay the sum of
On the 2nd day of May 1916 the complainants entered their appeal from the decree of the court made on April 7th, 1916, and also from the supplemental decree. Supresedeas bond was given; and the three cases consolidated, came to this court on the 24th day of July 1916 with nineteen asignments of error.
The first assignment of error complains that the court erred in dissolving the temporary injunction or restraining order in said cause. This Court has already affirmed the order complained of. See Ogden v. Baile, et al., 69 Fla. P. 458; and under it-the Court, after hearing all of the evidence, is satisfied that there appears no reason why the former decision should not stand.
There are several assignments of 'error but what we conceive to be ngal issues in this cause are:
First: Did the court below err in finding that a trust was created by W. B. Ogden for the benefit of Georgiana Carhart with J. C. Baile as trustee, and,
Second: If the court did not err in finding there was
The first question to be determined therefore is whether W. B. Ogden actually created a trust for the benefit of Georgiana Carhart with J. C. Baile as trustee. This is largely a question of fact to be determined from the testimony offered, though, there are some legal rules by which the testimony should be measured. It appears from the pleadings and the testimony in these cases that Mrs. Georgiana Carhart was for twelve years the housekeeper for W. B. Ogden; it appears also' from the same source that W. B. Ogden was a man of means, and was himself, not actively engag-ed in business, but whose business interests were looked after and carried on under his directions by others. It also appears that for about six years the defendant, J. C. 'Baile, was the confidential friend, agent, and attorney in fact, for the said W. B Ogden. Georgiana Carhart left the employment of W. B. Ogden about December 19x3, shortly thereafter J. C. Baile went to see W. B. Ogden with reference to Mrs. Carhart, and Mr. Ogden in his testimony says that “We discussed what should be done. I told him (J. C. Baile), I was only too willing to give what I could, and I asked him what he thought was the proper thing, and he suggested twelve hundred dollars a year.” In his testimony Ogden also said, “I said in any case I could not give as much as I would like to do, but would agree on that,”—the twelve hundred dollars a year. Ogden said that he would make the payments every month, but Baile said that there were not sufficient securities, that Ogden’s word was not enough, that he might change his mind. Ogden said that there was some question about the notes and securities
“The Tee House Plantations
“Lemon City, Florida, Jan. 27th 1914.
“Received from W. B. Ogden the sum of one thousand dollars in cash, a note for one thousand dollars due - and the securities enumerated below, and such of them, to be selected by J. C. Baile, to the a'mount of fifteen thousand dollars face value, are hereby guaranteed, as-to principal and interest, by said W. B. Ogden, and said selected notes and securities are hereby accepted as full and complete satisfaction for any claim or claims of any kind whatsoever, that may have arisen, or may arise from any cause, conditions or appearances, no matter how indirect or direct. The selected securities to be held in trust for the purpose fully set fortji in the statement annexed and signed by J. C. Baile in the presence of witnesses.
SECURITIES DATE
Note $ 1000 W. E. Otstott--------July 13, 1912
Note $ 500 W. E. Otstott---------Jan. 4, 1913
Note $ 1250 W. E. Otstott________Feb. 12, 1913
Note $ 1250 W.' E. Otstott--------Feb. 17, 1913
Note $ 1400 W, E. Otstott_________Mar. 14, 1913
Note $ 4000 J W. Watson__________July 22, 1912
*1138 Note $ 1000 E. B. Douglas -------Nov. 22, 1913
Note $ xooo E. B. Douglas________Nov. 22, 1913
$11400
8000
$19400
Note $ 1000 E. W. Otstott ________Jan. 4, 19x3
Note $ 1250 E. W. Otstott ________Feb. 8, 1913
Note $ 1250 E. W. Otstott _______J?eb. 17, 1913
Note $ 1500 E. W. Otstott________Mar. 14, 1913
Note $ 1000 E. W. Otstott________Aug. 22, 1913
Note $ 1000 E. B. Douglas _______Nov. 22, 1913
Note $ 1000 E. B. Douglas________Nov. 22, 1913
$ 8000
“The Douglas notes are made payable to J. C. Baile, but are owned by W. B. Ogden.
Witness:---------------------
Witness :_____________________as to------------
Sig----------------1-----
Sig--------.-------------
Statement Annexed Referred to Above.
“I acknowledge possession of the notes with their respective securities belonging to W. B; Ogden, and I agree to account to W. B. Ogden for the above $19,400 and his share in the E. A. Waddell notes (given in part-payment for the Ave. D. lots), in manner agreed upon between him and the writer, i. e., that I shall pay to Mrs. G. P. Carhart each year during her dependency the sum of $1,200 paying in quarterly payment of $300 each; said*1139 amount, so paid, to be derived solely from the interest or earnings of above selected and guaranteed notes (Wad-dell notes are a separate transaction), and I agree, without remuneration, to attend to all matters relative to collecting interest, renewing notes, relending money when notes are paid, and finally to refund to W. B. Ogden the amount in notes or money when it is shown that the said Mrs. U. P. Carhart is -married, or is no longer dependent, or is no longer living. Substitution of any of the above notes and securities shall be in notes and securities satisfactory to W. B. Ogden. In case of my death or inability to ex-cute the above trust, it shall devolve up on W. B. Ogden, or an appointee satisfactory to him. While I agree to safeguard the above to the best of my ability I shall not hold myself responsible for losses absolutely unavoidable, or beyond my control to protect.
“(Sig) J. C. Baile.”
“Witness W. R. Kellum
“I agree and accept
“(Sig) G. P. Carhart,
“Date--
This paper is typewritten and admitted by W. B. Ogden to have been typed by himself. It is signed by J. C. Baile and G. P. Carhart. The first paragraph of this paper was written by W. B. Ogden according to- his own testimony. The second paragraph simply gives an itemized statement of the notes, and upon comparison, -it will be found that they are the notes described in the bills of complaint and answers. The only other writing on the second paragraph being the words “The Douglas notes are made payable tb J. C. Baile but are owned by W. B. Ogden.” The third paragraph of this paper is the one referred to in the first paragraph as being the “Statement annexed and signed by J. C. Baile in presence of wit
The rest of the paper was a copy which was prepared by Mr. J. C. Baile. In other words, the part of this paper which was written by Mr. Ogden provides that the securities are to be held in trust for the purpose fully set forth in the statement annexed and signed by J. C. Baile. The statement annexed and signed by J. C. Baile reads as follows:
*1141 “Statement Annexed Refered To Above.
“I acknowledge possession of the notes with their respective securities belonging to W. B. Ogden, and I agree to account to W. B.'Ogden for the above $1940, and his share in the E. A. Waddell notes (given in part payment for the.Ave. D. lots), in manner agreed upon between 'him and the writer, i.e. that I shall pay to Mrs. G. P'. Carhart each year during her dependency, the sum of $1,200 paying in quarterly payments of $300 each; s,aid amounts, so paid, to be derived solely from the interest or earnings of above selected and guaranteed notes (Wad-dell notes are a separate transaction), and I agree, without remuneration, to attend to all matters relative to collecting interest, renewing notes, relending money when notes are paid, and finally to refund tó W. B. Ogden the amount in notes or money when it is shown that the said Mrs. G. P. Carhart is married, or is no longer dependent, or is no longer living. Substitution of any of the above notes and securities shall be in notes and securities satisfactory to W. B. Ogden. In case of my death or inability to execute the above trust, it shall devolve upon W. B'. Ogden, or an appointee satisfactory to him. While I agree to safeguard the above to the best of my ability, I shall not hold myself responsible for losses absolutely unavoidable, or beyond my control to protect.
' “(Sig) J. C. Baile.”
“Witness : W. R. Kellum
“I agree and accept
- “(Sig) G. P. Carhart.
“Date--
As stated, the notes referred to were the notes involved, in this suit. Mr. Ogden in his testimony claims that he drew up two tenative forms. He also says in his
“The Jefferson
“Ollie Demeritt, Mgr.
“Key West, Florida, Jan. 28, 1914.
“My dear Don Carlos.
“I had just time to pack and catch, the train when I scribbled you last night. I thought you wouldn’t object to the substitution clause as circumstances might arise when the use of some particular note might be desirable and if replaced by others satisfactory to you, .1 see no objection. The ‘death or inability’ clause should read satisfactory to both, but my idea when writing it was, that you would probably choose some one.
“My idea as to the second form was this: It seems to me more just. When first talking- the matter over, you said ‘they’ wanted $25000 but you thought $20000 or (momentarily forgetting the high rates of Miami and figuring- on a northern basis of 5%) $1000 a year. I said $1200 a year, upon which we both agreed. Now $15000 of these notes guaranteed by me both as to principal and interest, as the;/ draw 8% makes $1200 a year. Even at the best it is very one sided, as you are absolutely assured and I in my turn have nothing but promises to rely upon. I think they will be kept, I will admit,, or at least the effort*1144 will be made. But you yourself said yesterday that when one got talking to sympathetic listeners one talked anyway. And I would not trust the best woman on earth if her interests are the other way and tempting opportunity fairly put to her. The better the class of security you select for me to guarantee, the better for me. Why don’t you put in the Waddell notes ?
“In case you have anything to talk over about, get her to sign both fonus and then you can sign the one we eventually agree upon.
“Good luck to you all, Lovely weather,
Yours,
“Ogden.
“P. S. By your plan you are getting $21,400, where you only asked for $20000. In any case, however, the $1200 a year is decided upon. So I think that there will be no question about the second or amended form.”
In this letter it will be noticed that in two different places Mr. Ogden states that he and Baile had decided upon twelve hundred dollars a year to be paid to Mrs. Carhart. There was nothing left to be done insofar as the amount of the annuity was cónéerned. This declaration conveys to the mind a fixed and settled purpose that Ogden had fully determined and agreed that out of certain notes and mortgages which he held as investments, there should be paid to Mrs. Carhart the sum of twelve hundred dollars per year so long as she was. dependent or continue to live. It shows an intent fully formed and fixed, and the contents of the letter further shows that Baile was the man selected to execute the trust because he says, “The better the class of security you select for me to guarantee, the better for me. Why don’t you put in the Waddell notes?” This was leaving the class of security to be selected by Mr. Baile, and naturally Ogden
Mr. Ogden’s testimony on this point, including questions and answers is as follows: “Q. After you returned from Key West do you recollect that Mr. Baile stated to- you that Mrs. Carhart had signed the trust agreement and that you said, ‘All right that-is all right?’ A. It is quite possible. I don’t remember how her signature came to my hands.”
Mr. Baile testified that during the time Mr. Ogden remained in Miami from January until the following April, this trust agreement was frequently referred to and discussed. Mr. Ogden in his testimony says that he never agreed verbally or in writing to make this trust agreement for Mrs. Carhart, but in view of the first paragraph of the trust agreement, which he says was .written by himself, and the third paragraph of same which was copied by him from something Mr. Baile gave him, and additions made to it by Mr. Ogden himself, and in view of the further fact that the itemized statement of the notes is embraced in the agreement whic^h Mr. Ogden typed himself, and the further fact that in his letter' he announces which agreement is most satisfactory to him, that being the one which was finally signed by Mrs. Car-
In order to constitute the trust there must be sufficient words to create it. In short,' there must be a settlor or creator thereof. In this case, 'W. B. Ogden was the settlor or creator. Next, there must be a cestui que trust, or a living or existing beneficiary, and there must be a trustee. In this case, it is clearly shown from the evidence that it was the intention of Mr. Ogden that Mr. J. C. Baile should act as trustee. So hce would be all of the elements necessary to constitute a trust, created by W. B. Ogden in favor of Georgiana Carhart with J. C. Baile as trustee. “Sufficient words to create” the trust
“It is well established that at common law and under the statute of fraud, as interpreted by the English courts, the trust in personalty can be created by parol.” See
We might further state that the trust agreement contained nothing as to when or how the selection of these securities should be made, and that in the absence of such specifications the trustee would be allowed a reasonable time to make the selection, and if he did not make the selection within a reasonable time, Ogden could have required him to- do so-. But we find from the testimony there was no effort on the part of Ogden to require Baile to make the selection, and it is patent on its face that at the time the contract was made, the securities could not have been selected so as to- give exactely fifteen thousand dollars to the trustee, and necessarily, Baile would have been required to wait until there was some change or alterations in the forms or amount of some of the securieies. Suffice, it to say that Baile held nineteen thousand, four hundred'dollars worth of security by and with the consent
It is evident, as was said by the chancelor in his decree “That the creator of the trust, W. B. Ogden, endeavored to repudiate the same by legal action, and that it was necessary that J. C. Baile, the trustee, employ counsel to protect the same, and that the said counsel employed by the said J. C. Baile did effectually protect the same.” In the 28 Am. & Eng. Ency. of Law (2nd Ed.) p. 1090, it is said that it is the duty of a trustee to assert and protect diligently and faith fully'the, interest of the beneficiary, and if in fulfilling the duty he becomes involved in any litigation, he will be allowed in his accounts a reasonable amount expended for legal advice, counsel fees and other expenses. See also Pomroy’s Equity Jurispruddence (3rd Ed.) Sec. 1085; 39 Cyc. P. 339 and notes; Trustees v. Greenough, 105 U. S. 527; Mitau v. Rodden (Cal.) 6 L. R. A. (N. S.) P. 275; Griffin v. Pringle, 56 Ala. 486; Clark v. Anderson, 76 Ky. 111; Weigand v. Woerner, 134 S. W. 596; W. Texas Bk. & Tr. Co. v. Matlock, 172 S. W. p. 162; McLaughlin v. Wester R. Corp. 66 Mass. 131; Downing v. Marshall, 37 N. Y. 380; Mitchell v. Schultz, 8 Ohio 78; Abend v. End Fund Coms. decided by the Supreme Court of Ill. 50 N. E. Rep. 1052. Lewis Ex. v. Gaillard, et al., 70 Fla. P. 172.
There was some question as to whether or not the securities were properly in the hands of the trustee on account of the endorsement. , The evidence in this case
We* therefore find no error in the chancellor’s order in holding and decreeing that the trustee was entitled to a reasonable compensation for his attorneys fees, as well as for the reasonable and necessary costs disbursed.
The next question presented is the procedure on the part of the trustee in asking for the counsel fees and cost. This was. done by a petition in the same proceeding setting up the different steps taken in the case to the date of the filing of the petition for counsel fees and cost. It is claimed that the chancellor had no jurisdiction to entertain this petition in the main suit, but that the trustee must recover his costs and fees out of the injunction bond. We cannot agree with counsel for the appellants that this procedure was erroneous. In the case of Lewis, et al., v Gaillard above cited, 70 Fla. 172, this Court had occasion to pass upon a similar question. In that case, which was one involving a trust estate, the parties attacked the trust estate. Geo. Lewis was the trustee of that estate. When the final decree was entered the Gaillards, et al., who had brought the suit, filed a petition in the same court and prayed for a decree adjudging to' them out of said trust funds their cost and counsel fees in the litigation, basing their claim to such counsel fees upon the ground that the litigation instituted by them, resulted in direct and legal settling for the executor and trustee where and to whom the estate in his hands belonged. The trustee, Geo. Lewis, also applied by petition in the same cause, for an allowance
From the testimony of reputable attorneys, which we have read in the,record, we are of the opinion that the chancellor was fully warranted in allowing the sum of three thousand dollars as counsel fees, in fact, we find no evidence contradicting the testimony offered by the petitioner, J. C. Baile, as to what would be a reasonable attorney’s fee. This also disposes of the objections raised by counsel for the appellee at the time of the taking of the testimony. The 14th, 15th and 16th assignments of error complained that the court erred in decreeing the defendant a lien on the securities held by the receiver for the payment of the three thousand dollars solicitor’s fee, and for the order of sale to pay same. There was no error in this, for it was proper, that the chancellor, after
Finding no reversible error, it is ordered that the decree of the lower court appealed from be affirmed at the cost of the appellants.
Taylor, Shackleford> Whitfield and Ellis, JJ., concur.
Browne, C. J., disqualified.