67 So. 985 | Ala. | 1915
Appellant, Jennie H. Bidwell, qualified as executrix of the last will of Rufus Dane, deceased, in the probate court of Mobile county. Inventory of the estate was dnly filed by her, and the same was duly appraised. More than three years thereafter,
Upon consideration of the agreement of settlement above referred to, by which each distributee accepted $1,200 as in full payment of any balance due them, and which was to be above all court costs, we are of the opinion that if the fee for counsel for said contesting distributees was properly a matter that could, under the statute hereinafter quoted, be taxable as a part of the costs of the case, such order was not in violation of said agreement of settlement, as is insisted by counsel for appellant.
The executrix was represented throughout by counsel. One of the distributees of the estate was non compos mentis, but ivas duly represented by guardian ad litem, and counsel for appellees,' F. G. Bromberg, was also counsel for said guardian ad litem. For his services in this capacity he was allowed $100 by the register, and to this portion of the report no exceptions were reserved, and therefore no assignments of error were presented thereto', nor is the matter argued in brief for appellant. This allowance, therefore, is without contest, although counsel for appellee argues the same at some length in his brief.
The cases relied upon by counsel for appellant as denying the allowance of any counsel fees for the solicitor for the appellees (Foster v. Foster, 126 Ala. 257, 28 South. 624; Jordan v. Farroio, 130 Ala. 428, 30 South. 338), were decided prior to the passage of the act approved February 2, 1903 (General Acts of Alabama 1903, p. 33), and of course prior to the Code provision which we now have (sections 3010 and 5219 of the Code of 1907). Section 3010 of the Code provides as follows: “In all suits and proceedings in the probate courts and chancery and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust, joint or common property, or any party in the suit or proceeding, and is authorized to tax as a part of the costs in such suit or proceeding such reasonable attorney’s fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court.”
Speaking to this section, it was said in the case of Wilks v. Wilks, 176 Ala. 151, 57 South. 776: “This is a condification and improvement of the act of February 2, 1903. * * * We think it was not intended to authorize cestuis que trustent, or parties claiming
The above case concerned the administration of an estate. It was not there questioned but that the section had reference to such an administration, and we are persuaded that such a case presents the administration of a trust within the meaning of this provision of the Code.
It is insisted that a literal construction of the act would authorize the taxation of an attorney’s fee for the payment of an attorney for any party to the suit, whether such services were for the common benefit of all or not. Such a construction would, in our opinion, make that provision of the section now under consideration of doubtful constitutional validity.—S. & N. A. R. R. Co. v. Morris, 65 Ala. 199; Smith v. L. & N. R. R. Co., 75 Ala. 451; Birmingham W. W. Co. v. State, 159 Ala. 120, 48 South. 658; G., C. & S. F. R. R. Co. v. Ellis,165 U. S. 161, 17 Sup. Ct. 255, 41 L. Ed. 666.
It is recognized as an established rule of construction that it is the imperative duty of the court to uphold a statute when it is fairly susceptible of two interpretations, one which would uphold its constitutionality, and the other defeat it, though the adoption of the former be the less natural.—State ex rel. Collman v. Pitts, 160 Ala. 133, 49 South. 441, 686, 135 Am. St. Rep. 79. Furthermore, such a construction as contend
Such an equitable construction was given to the statute in the case of Wilks v. Wilks, supra, wherein it was indicated that for such a fee to be taxed under this statute out of thS common fund it must have been for services rendered for a matter in which the trust as a trust is interested, or for the common benefit of all. Indeed, we take it that this is the construction so fixed by the-Legislature in adopting the Code, as shown in section 5219, Code of 1907, wherein these words are found,. “When the services are for a common benefit of all.” See, also, Northern v. Tatum, 164 Ala. 368, 51 South. 17. This construction rests upon the principle akin to that recognized in such cases as Strong v. Taylor, 82 Ala. 213, 2 South. 760; Grimball v. Cruse, 70 Ala. 534; Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157, Central R. & Bkg. Co. v. Pettus, 113 U. S. 116, 5 Sup. Ct. 387, 28 L. Ed. 915—wherein the principle is stated that where there is a common trust or fund and suit is instituted by one for the benefit of all, it is not just that one alone should bear the burden when others receive the benefit.
It can be readily seen that in the administration of a trust, instances may arise in which the distributees or beneficiaries may find the necessity to take the initiative in proceedings for the preservation or the recovery of a trust fund. But certainly under the con
Counsel for appellee has taken no pains to point out to us, in a rather voluminous record, wherein the trust
One of the motions made by counsel for appellee seems to have been to require the executrix to pay over to Mrs. Carleton and Mrs. Rogers their share of a ecrtain fund. It is too clear for discussion that such motions are for the benefit of those distributees individually, and not for the common benefit of all, a question in which the trust as a trust is in no way interested, and for such services the statute makes no provision.
The executrix, on motion of counsel for appellee, was required to give bond, and the estate was removed into ■the chancery court for administration. Doubtless such service in this case may be considered as for the benefit of all and properly chargeable under the provisions of this statute.
There were a series of motions and petitions filed in this cause, very few of which .received favorable response from the court. In the allowance of fees for counsel for the parties, as in this cause, where as here the trust, through the employment by the executrix, is represented by counsel, it should be kept in mind that ordinarily there should be an estate or fund discovered, rescued, or preserved, which would otherwise be beyond the reach of the parties interested, and that the parties should not be required to contribute to the expense of a barren litigation.—Strong v. Taylor, supra.
In fixing the compensation in such cases as here presented, the trust estate being represented by counsel, the court should exercise the greatest caution, and while the fact that the proceeding was unsuccessfully made, under the rule we have just stated, may not necessarily deprive the counsel of all compensation, yet in cases of this character it should be given much weight by the court in fixing the allowance, for it can only be allowed at all upon the principle that the services performed were for the benefit of those distributees or beneficiaries not joining in the employment, and in a proceeding which the court has determined should have been prosecuted in good faith, and upon probable cause: We do not see that if these rules are observed the construction here given the statute will result in any of the evils prophesied by counsel, but if so, that would be a matter that would address itself to the lawmaking body.
Here, as before stated, the executrix was represented throughout by counsel, and, as disclosed by the evidence, for his services in the entire administration he
The reference before the register upon this issue should have been confined solely to the services rendered by such counsel which were for the benefit of all or of a trust fund, .and due account should have been given to the unsuccessful determination of many of the proceedings.
As previously stated, counsel for appellee has not pointed out to us wherein he has materially increased the estate. It may be that some of his efforts resulted in quickening the activities of the executrix to a more faithful discharge of her duties, and to a more careful regard for the rights and interests of the distributees, and had their, influence, in bringing about, an advantageous settlement between the parties. If the court finds that such was the case, this may be taken into consideration in determining the question of compensation, and as to whether or not any beneficial results followed any services rendered; but, as these are matters which were not inquired into and do not appear to have been considered upon the reference in this cause, we do not feel justified in here rendering a decree, but in the present state of the record we think it proper to remand the cause that another reference may be held.
Affirmed in part, and in part reversed and remanded.