132 Ky. 192 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
"Wesley B. Pepper died testate in Fleming county in the year 1897, the owner of a considerable estate. By his will, which was duly admitted to probate, Ms brother, Enoch S. Pepper, was made executor. He qualified as executor and filed a suit in the Fleming circuit court for the construction- of the will. The testator was a bachelor, and his property went to Enoch S. Pepper, his brother, Jos. S. Pepper, and the descendants of two sisters. A litigation- ensued in which the children of the two sisters sought to charge Enoch S. Pepper with a large amount of property with which he insisted he was not chargeable as executor, and also' insisted upon a construction of the will
The proof taken shows clearly that the expenditures were reasonable and1 were necessarily made in the prosecution of the litigation against Enoch S. Pepper. It also appears that Jos. S. Pepper received in money and property a large amount which was the fruit of the contest made by the children of the two sisters. It further appears that Jos. S. Pepper did not wish the contest made, preferring to remain on good terms with his brother, Enoch S. Pepper; and
In Thirlwell v. Campbell, 11 Bush 163, the plaintiff, who owned an undivided interest in certain realty, brought a suit for its sale. The defendants were rep
The whole subject was reviewed by this court in Louisville Presbyterian Theological Seminary v. Botto, 117 Ky. 962, 80 S. W. 177, 25 Ky. Law Rep. 2137. In that case Mrs. Irvin had' made a will by which she devised large sums to a number of persons. After-wards she executed two codieiles to the will, the effect of which would have been to greatly reduce the legacies under the original will. Some of the legatees under the original will, contested the two codicils, and they were held invalid. Mrs. Clo-teal Botto and her son, W. M. Botto-, were legatees under the original will. By the codicils their legacies were increased from $50,000 to $150,000. They employed attorneys and resisted the setting aside of the two codicils. After the codicils were set aside, the legatees at whose expense the litigation had been conducted sought contribution from Mrs. Oloteal Botto and her son, W. M. Botto, as well as all the other persons taking legacies under the original will. They resisted the claim, insisting that they should not be made to pay any part of the cost of a litigation which bad been conducted against them, and which had taken from them two-thirds of their claim; but this court held that all the legatees under the original will must contribute to the expenses of the contest as all these. legacies were protected by the rejection of the codicils. In answer to the argument that the Bottos were losers by reason of the litigation, the court said1: “If the allowance in tins case was for services in a suit to recover the trust property from a stranger who had unlawfully taken
That case is a much 'stronger one than this, for it •is not claimed here that Jos. 8. Pepper lost anything by the litigation. Counsel for appellee fail to recognize the fact that the statute quoted does not introduce into the law a new principle. It is simply a .’statement of a rule of equity which is as old as equity jurisprudence. A trust fund in equity was always required to bear the expenses of its administration, and, when one of several owners at his own expense recovered a trust fund1, he was always allowed his necessary expenses out of what he brought hack. In the common-law books the subject is dis•oussed under the head of “Costs as Between Solicitor and Client.” In 2 Daniell’s Chancery Pleading & Practice, 1434-1437, it is said: “It has been stated •that the Court of Chancery makes a distinction with regard to the principle upon which the officer of the .court is to proceed in the taxation of costs, and that •this distinction is marked by the terms of ‘costs as between party and party,’ and ‘costs as between solicitor and client’; the court in the latter case permitting a larger proportion of actual expenditure to parties holding particular characters than it allows in the former case. No definite rules' can he laid down, with reference to the differences between the. costs allowed npon one basis or the other-. In general, however, in taxations as between party and
The subject came before the United States Supreme Court in Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157, wholly independent of any statute. There the holder of certain mortgage bonds had brought a suit to prevent the misappropriation of the mortgage property and had preserved the fund. In doing this he had spent $60,000 and sought contribution from the other bondholders out of the fund so preserved. The court, after an elaborate discussion, adjudged
We see nothing to.take this case out of the rule laid, down in the cases cited. Jos. S. Pepper was not in any substantial sense represented by attorneys of his own choosing. He paid nothing for attorney’s fees, and was not expected to pay anything. The attorneys, represented the executor, and they simply agreed to represent Jos. S. Pepper, as he sided with his brother-Enoch, the executor. To permit him in such a way as this to throw upon his co-legatees all the cost of the litigation, and at the same time enjoy in full its benefits, would be wholly out of keeping with the equity rule and the practice of courts of equity from the beginning. Equity delights in equality. It looks at the substance, and not at the form, of a transaction.. It will not impose a burden which in equity should not be borne, but it will not allow a mere form to affect the operation of its principles. In all the cases where- the court refused to allow extraordinary expenses to be paid out of the fund, the ruling was based upon the ground that under the circumstances it was not just that contribution should be ordered. In the case at bar the justice of the claim is manifest, and.
Judgment reversed, and' cause remanded for a judgment as above indicated.