37 N.Y. 432 | NY | 1867
Our attention is specially directed to the exceptions touching the extra allowances of costs and counsel fees in this case.
When the case was first in the supreme court, there
By the common law, costs were not awardable. They were, however, recoverable in many actions at law, as early as the 13th century. (2 Inst. 112, Statute of Marlbridge, ch. 6; Id. p. 288, Statute of Gloucester, whereof Coke says: “Before this statute, at the common law, no man recovered any costs of suit, either in plea, real, personal or mixed;” 6 Yin. Ab. 821, Costs.) By a statute of the 17 flic. II., ch. 6, it was enacted, that “forasmuch as people can be compelled to come before the King’s Council, or in chancery, by writs granted upon untrue suggestions, that the Chancellor for the time being, personally, after that such suggestions being duly found and proved untrue, shall have power to ordain and allow damages, according to his discretion, to him which is so troubled unduly, as often is said.” (Beames on Costs in Equity, 4; 4 Inst. 82, where Coke says: “This is the first parliament that
The practice of punishing a party, by ordering the payment of a gross sum, or exemplary costs, was dis continued at an early day, from the intrinsic difficulties of conviction (Beames on Costs in Equity 164); and the court, after a time, regulated the amount of costs, and for what services they should be allowed, by general orders, and thus established a fee-bill of costs, between party and party, which is adhered to, except' in special' cases, when the court will order the costs to be taxed as between solicitor and client.
I am not aware that parliament interfered with the discretionary power of the court over costs, except, perhaps, to a very limited extent. By a statute (4 Ann. ch. 16, § 23), it was enacted, “ that, upon the plaintiff dismissing his own bill, or the defendant dismissing the same for want of prosecution, the plaintiff in such suit shall pay to the defendant or defendants, his or their full costs, to be taxed by a master.” This statute, it was held, did not apply to a dismissal at the hearing; and it was usual for the plaintiff to set down his cause for hearing on bill and answer, and, on being dismissed, he would only be liable for forty shillings costs, according to an old rule of the court; and to obviate this, the
We shall hereafter find this part *of the * statute of Anne in our statutes, and I may as well notice it here, as I am about, to look into our legislation briefly. It is found in the act passed April 7th, 1801, to reduce certain laws concerning costs into one statute, and I think all the provisions of the act relate to actions at law, except § 16, which is taken from the statute of Anne. (Statutes H. & R, vol. 1, p. 532, § 16.) This is carried into the revised laws of 1813 (vol. 1, p. 346, § 16), in an act concerning costs, having no other relation to costs in chancery, and thence, with a modification, into the revised statutes (vol. 2, p. 613). April 8th, 1801, an act was passed, entitled “ An act regulating the fees of the several officers and ministers of justice within this state,” .by which it was enacted, “ that no officer or other person shall exact, demand or ask, or be allowed, any greater or other, fee or reward, from or in respect of any service hereafter to be done, or payment, than such as is hereinafter specified, that is to say:” This act contained fee-bills for solicitors and counsellors, and all other officers in the court of chancery. The enactment in the revised laws of 1813 is in the same words; and I am not aware, that they underwent any modification, prior to the revised statutes of 1830. By the latter statutes, the chapter relating to costs is divided into four titles. The first specified the cases in which costs may be awarded, and the first section contained
We may now proceed to the Code. By § 303, “All statutes establishing or regulating the costs and fees of attorneys, solicitors and counsellors, in civil actions, are repealed. But there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity, for his expenses in the action, which abow
This includes all the costs (law costs) provided for in §§ 304 and 305, and not specified in § 308, in which costs gire allowed, of course, and in such cases, will be
In my opinion, this case is specified in § 308, and thus the discretionary power, under §309, to make a further allowance, is not applicable to the case. It is an action for “ an adjudication upon a will;” it was commenced to obtain the construction of the will, and directions how to proceed under the will; the, difficulties were created by the will. It may, perhaps, be said, that if there had been no difficulty created by the will, still, it was a proper case for the executors to come into court for instructions. If this be conceded, what subject-matters would be involved, requiring instruction or directions ? I can conceive of none extrinsic the will, except as to the property that should be resorted to, out of which to make up the deficiency to pay debts. ' The question
It is certainly clear to my mind, that the allowances made in this case are not warranted by any statute, now or ever in force in this state, and it is not so claimed
The books speak of costs between party and party, and of costs to be taxed as between solicitor and client. The court of chancery, in England, in exercising its discretion with regard to costs, from time to time, laid down general rules applicable to certain kinds of suits, as distinguished from others, and by these rules, all subsequent cases, coming within them, were governed. Under a decree, awarding costs, generally, these rules were resorted to, as establishing the items and amount of such costs, and such costs are the costs between party and party. These rules were general, and often, indeed, generally, fell short of affording to the successful party a full indemnity. In certain cases, these general rules were departed from, and an attempt made to approximate more nearly to an indemnity, and items were allowed, other than those specified by the general orders, such as the solicitor, &c., would have a right to obtain of his client, and such are said to be costs between so^c^or an<^ clierLk To authorize the taxation of *the bill as between solicitor and client, requires a special direction in the order or decree of the court, and it was rarely intended, even in such a case, to afford a full indemnity. (Beames on Costs, Introduction, and p. 11.)
The practice of ordering the costs to be taxed, as between solicitor and client, is fully authorized in
As we have seen, the allowances in this case, as costs, beyond the taxable costs, cannot be sustained, upon any statute, or any notion of power in the court to allow extra costs, or costs of any kind, independent of statutory authority. Is there any other general principle of law upon which they, or any of them, can be sustained, in whole or in part ? I think, there is. The principle to which I refer is, that persons acting m autre droit, as executors, administrators, trustees, guardians, receivers, &c., are, upon a faithful execution of their trusts, to be indemnified out of the trust property, for all expenses necessarily incurred in the faithful performance
It is a general rule, that a trustee shall have no allowance for his trouble and loss of time, and one of the reasons given is, that, on these pretences, if admitted, the trust estate might be loaded and rendered of little value, besides the great difficulty there would be in settling and adjusting the quantum of such allowances, especially as one man's time may be more valuable than that of another. (Lewin on Trusts, and cases there cited.) Though a trustee is allowed nothing for his trouble, he is allowed everything for his expenses out of pocket (Lewin on Trusts 557.) Lord Eldon, in Worrall v. Harford (8 Ves. 8), says, that “it is in the nature of the office of a trustee, whether expressed in the instrument or not, that the trust property shall .reimburse him all the charges and expenses incurred in the execution of the trust.” A trustee will be entitled to be reimbursed his necessary travelling expenses; fees properly paid to counsel; and when called to account by the cestui que trust, he will be allowed his necessary costs in former suits, in case they have not been occasioned by his own negligence, and will not be concluded by the previous taxation as between party and party. (Lewin on Trusts, 557 et seq., and cases cited.) In short, the trustee, though allowed nothing for his trouble, is allowed everything for necessary expenses in executing the trust. His duties relate' to the property and interests of others, and he is to be indemnified for necessary expenses in protecting such trust property, and has an equitable lien upon it for such expenses. This property is entirely independent of any statutes relating to costs. When the trustee is a party
But, as we have seen, there can be no such thing, in this state, as a taxation of costs as between solicitor and client, to be paid by one party to the other; as, here, the taxable costs are fixed and limited by statute, to which, in certain cases, further allowances may be added. Not so in the English Chancery; there, they are only regulated by general orders, adopted from time to time, which may be, and are in special cases, departed from. Hence, too, in England, the expenses of trustees in a suit are often spoken of as costs, and with propriety, under their law, giving full discretion as to the amount of “ damages” (costs) to be awarded, and who shall pay; though in the English cases, the expenses and charges to which a trustee may be entitled, outside of the ordinary fee-bill, are designated as allowances, and are usually adjusted in the suit in which they occur, and are charged upon the trust fund in court, unless the adverse party is required to pay upon taxation as between solicitor and client, and which latter may not include all that the trustees may be entitled to,
Thus, in Fearns v. Young, Lord Ellon said : “ When costs of a trustee are directed to be taxed, that means as between party and party, not in the larger way. But when a trustee, in the fair execution ^ his trust, lias
cos*’s legates and cestuis que trust may be, and are, in proper cases, ordered to be paid out of the fund involved in the litigation. But this means the ordinary taxable costs, as between party and party, and I have found no case where such costs have been taxed as between client and solicitor, or where any special or extra allowance has been ordered. In Fearns v. Young (supra), the Chancellor, speaking of “just allowances,” remarks: “With regard to an infant, this requires great consideration, as the infant himself cannot incur chcurges and expenses; if they cannot be claimed under just allowances, and the next friend is to be at the whole expense of the infant, beyond his costs, persons will deliberate before they accept that office.”
Chancellor Walworth, in Union Insurance Co. v. Van Rensselaer (4 Paige 87): “ If an extra allowance is made to guardians ad litem of the infants, it must be paid out of their share in the surplus, as nothing but the taxable costs can be charged upon that portion of the fund which belongs to other parties. And it must be a very special case, to justify the court in allowing extra counsel fees against an infant, in any event.” Though, in England, the court has power, under the statute of Richard, to award damages according to discretion, and could, therefore, award a full indemnity to any party, and, in a proper case, make it chargeable upon the trust-fund in court, so firmly settled is the practice,
Counsel cites Morrell v. Dickey (1 Johns. Ch. 153). In this case, the widow and infant son of the testator filed the *bill against the defendant, as administrator, for money in the hands of the latter. Though the decree was for the plaintiffs, the Chancellor said the defendant was not in default, and ought to receive costs out of the fund, and that this was the course of the court, in such cases, and it was decreed, that his costs be paid out of the widow’s share. Rogers v. Ross (4 Johns. Ch. 608) is to the same effect, the Chancellor repeating the general rule, that executors or other trustees who have acted fairly, or who have resisted a claim in good faith, merely by way of submission, shall have their costs out of the fund. In Grover v. Wakeman (11 Wend. 226), another case cited, the bill was to set aside a voluntary assignment, and the court for the correction of errors ordered the costs of all the parties to be paid out of the funds in the hands of the assignees. There were no allowances in these cases; the costs were those given by statute between party and party.
In Irving v. De Kay (9 Paige 533), another case cited, the bill was filed by the executor to obtain a construction of the will, and the Chancellor says: “ The costs of all parties thus far ought to be borne by the estate,
It will be proper, in this connection, to say, that the English law, that trustees are allowed nothing for their trouble or services, has been, in a class of cases, changed in this state, by statute. It required a statute to change the law. The act of 1817 (ch. 251) made it lawful for the court of chancery, in the settlement of the
Apply the law, as here ascertained, to this case, and it follows, that the award of allowances to the plaintiffs, other than taxable costs, for their necessary expenses in the execution *of their duties as executors or trustees, or both, was authorized by law, unless the Code, by providing for additional allowances, has restricted the power of the court in a case brought into the court “for an adjudication of a will.” I do not think that it was intended to interfere with the comroon-law principle of indemnity to a faithful trustee or executor. The language is affirmative, and the percentage must be allowed to the plaintiffs, if costs are allowed.”
The only question remaining, as to this item of |2500, is, whether it is reasonable. If the court had a discretion as to the amount, it was of necessity, a legal discretion. The court could only allow a sum paid or incurred by the plaintiffs for the services of counsel, as
I am not satisfied with the amounts allowed. I think them unreasonable. When the case was first in the supreme court, $500 was allowed, and upon the second trial, this sum and $2500 in addition were allowed as counsel fees, reaching $3000 allowances beyond the taxable costs. The trial, aside from the arguments of counsel, could have occupied but little time, as but little evidence, other than documentary, was given. It may be conceded, that numerous difficult and interesting questions have arisen upon the will, and that the case was one eminently proper for a construction of the will, on account of all interested, and it may be stated, that the counsel for the plaintiffs have been most faithful in the discharge of their duties, and that they have brought to the consideration of the case great learning and ability. But, in my opinion, the plaintiffs, as executors and trustees, would not have been justified in paying $3000 counsel fees in this action to obtain the construction, &c., of the will. I think the sum should be reduced to $2000.
*Four of the defendants were infants, and appeared and put in, by their guardian, the general answers, and submitted their several and respective interests to the protection of the court. The judgment awards to the guardian ad litem $250, in addition to his taxable costs. All the sums allowed are directed to be paid by the executors and trustees, half out of the realty or its funds, and the other half out of the personalty. According to Union Insurance Co. v.
Ordered accordingly.