36 Haw. 686 | Haw. | 1944
This is an appeal from an order of a circuit judge of the first judicial circuit at chambers in equity allowing an attorney's fee and expenses of appeal out of the income of the trust created by the will of Alfred Hocking, deceased.
After the appeal in the main case was decided by this court (
Mary Genevieve Jacobs filed objections to both of said motions, her objections being in general that (a) the fee and expenses should in no event be paid out of the trust income but if at all out of the primary fund, the general residue of the estate, and (b) that the services for which compensation was asked were rendered in an attack on the trust in an attempt to enrich the general residue of the testator's estate at the expense of the trust and not in aid of the trust or for the beneficiaries thereof.
A hearing was had upon said motions and the objections thereto, and an order was entered directing the trustee to pay to Mr. Crozier the sum of $1000 for an attorney's fee and Mr. Hoffman the sum of $145.30 for costs and expenses of appeal and directed the payment thereof out of the accumulated trust income in its custody. From that order this appeal has been taken by Mrs. Jacobs.
The opinion of this court on the appeal of the main case, to which the present proceeding is incidental, is referred to for a detailed statement of the issues presented and litigated in the main case. In brief, it was a bill for instructions brought by the trustee under the will of Alfred Hocking, deceased, to determine who, after the *688 death of the widow of the trustor, was entitled to that portion of the net income theretofore payable to Mary Genevieve Jacobs, a daughter of the trustor. The clients of Attorney Crozier, as well as Mrs. Jacobs, were necessary parties to the bill for instructions and Attorney Crozier's clients unsuccessfully prosecuted the appeal from the decision in that case, which held that the gift of income to Mrs. Jacobs was for the duration of the trust if she lived that long, or for life if she died before the termination of the trust.
Appellant's specifications of error are: (1) The court below erred in directing the payment of the sum allowed to G.D. Crozier for his services in the supreme court out of the accumulated trust income in the custody of the trustee; (2) the court below erred in directing the payment of the sum allowed to Harry Edward Hoffman for costs and expenses on the appeal to the supreme court out of the accumulated trust income in the custody of the trustee.
Counsel for the appellant assert at the outset of their argument that the vital defect in the motions for the allowance of attorney's fees and expenses of appeal is that they are aimed at the wrong fund. The argument is, in brief, that the fee and expenses if payable out of any of the assets of the deceased trustor's estate should be paid out of the residuary estate. In support of that argument they cite Estate of Mary E. Foster,
In defining the powers of the trustee he also provided what expenses should be paid out of gross income in part as follows: "Said Trustee * * * shall also have authority to pay all expenses of maintenance and management of said buildings, interest, insurance, Trustee's commissions and special expenses, if any, and shall pay and distribute the net income either quarterly or monthly as it, in its discretion, shall deem advisable."
We think the attorney's fees and expense of appeal are "special expenses" and therefore within the class of expenses which the testator authorized the trustee to pay out of the gross income of the trust, and that the order of the circuit judge in directing payment out of the income accumulated pendente lite had the legal effect of ordering it paid out of the gross income. The order should therefore be affirmed unless the second ground of appellant's objection to the motions was well-taken.
In support of the second ground of appellant's objection, her counsel argues that the contention of Mr. Crozier and his clients in the main case, to the effect that the original gift of income to Mrs. Jacobs was not ambiguous, that it was limited to the life of Mrs. Hocking and was not disposed of after her death, constituted an attack upon the trust for the benefit of the residuary estate which the testator devised to his wife and she in turn devised to Mr. Crozier's clients. Had the argument advanced by Mr. Crozier for his clients prevailed, the trust would not have been destroyed in whole or in part. The trustee would have continued in the management of the properties of the trust until it terminated upon the happening of the events which the testator prescribed for bringing about its termination. No one in the main case contended that the trust would be destroyed in whole or in part if Mr. *691
Crozier's argument prevailed. The whole argument was directed to the question of to whom, after the death of Mrs. Hocking, the trustee should distribute that portion of the net income theretofore distributed to Mrs. Jacobs. One branch of the argument involved its disposition in the event the conclusion was reached that said income was not disposed of by the will. In the event of a decision that said income was not disposed of by the will, both parties argued for a resulting trust and differed only as to who would be the beneficiary thereof. We need not further detail the argument. It is sufficient to say that the contest was essentially one between Mrs. Jacobs on the one hand and Mr. Crozier's clients on the other as to the duty of the trustee after the death of Mrs. Hocking in distributing the income theretofore distributed to Mrs. Jacobs. We see no difference between such a controversy and one where one set of persons contests the claim of another set claiming to be members of the class designated to take income. This court has repeatedly held that such a proceeding is for the benefit of the estate, in that it aids the court in resolving the doubt which justifies the trustee in seeking the advice of the court and that in such cases all parties necessary to the entry of a protective decree are entitled to their necessary and reasonable costs and expenses, including a reasonable attorney's fee. (Wodehouse v.Robinson,
The order appealed from is affirmed.