79 N.J. Eq. 209 | N.J. | 1911
The opinion of the court was delivered by
The only question to be decided on this appeal is whether the vice-chancellor was warranted in advising the allowance of costs and counsel fees in this cause. There was a decree of dismissal from which the complainants appealed, and as above stated, that decree has been unanimously affirmed by this court.
There can be no doubt as to the general rule in the courts of this state, that costs will be awarded a complainant out of the estate on the dismissal of his bill when, as executor, he comes into a court of equity to settle the construction of the will, or for direction as to his duty in regard to the mode of carrying its provisions into effect. Whitenack v. Stryker, 2 N. J. Eq. (1 Gr. Ch.) 8; Van Houten v. Pennington, 8 N. J. Eq. (4 Halst.) 745; Cox v. Wills, 49 N. J. Eq. (4 Dick.) 573.
It cannot be pretended that the bill in this case was filed for the construction of a will or of a trust thereby created; it was only for an injunction to restrain, certain trustees from selling-property held by them, in disregard of the terms of the trust deed; it involved no question as to the construction of the deed creating the trust, the only question being whether the trustees were about to exceed the power given them, and the court below held, “where power is given to trustees to do a particular thing, they being constituted the judges and fully authorized to decide the matter, the court has no jurisdiction to command them as to the exercise of that power, provided their conduct be Iona fide in all respects.”
Again, the bill was not one filed by the trustees to ask and receive the aid and direction of a court of equity in the proper exercise of their trust, but even had it been, and reasonable ground had been shown to exist for coming into court for such direction, it by no means follows that costs would have been allowed such trustees as complainants, out of the trust funds, on the dismissal of their bill.
The English cases are all in accord with Dan. Ch. Pr. 1426, where, in referring to the exception to the general rule in the allowance of costs to the complainant on the dismissal of his bill, it is said that “the rule applies only to cases under wills; it does not apply where difficulties arise upon the construction of deeds.” Hampson v. Brandwood, 1 Mad. 208; Patrhcing v. Dobbins, Kay 1, 15.
Xo case can be found in this state where costs have been awarded a complainant on the dismissal of his bill for the construction of any other kind of instrument than a will.
This bill not having been filed by the trustees for the construction of the trust deed, it is not necessary now to decide what course this court would take had it been and were the question properly before it.
The decree allowing costs and counsel fees and the costs of the defendant, the attorney-general, should be set aside and reversed.
