*1 Mich 214. MERKEL LONG. Rehearing. On Decision of Court. Attorney (cid:127) Equity. Pees —Preservation 1. Trusts — or Additions — Attorney fees for services rendered certain effect- individuals ing controversy compromise a settlement of over the con- provision testamentary properly struction of of a trust trust, against be decreed where result is not beneficial to by way preservation the trust or additions to the trust estate, result, merely inequitable although to avoid require payment has inherent of such fees out of the (CL funds of the where result is beneficial trusts to the trust 702.45-702.49). §§ Attorney Ad 2. Same — Pees —Pees Guardian Litem. require parties is not engage It who counsel to of, proceedings approval compromise initiate resolving ambiguous provisions differences testamentary over satisfy individually trust obligations their contracted funds, private fund, fees from their not the trust litem, appointed leave fees of the chancellor protecting to assist him in ineomx>etent, the interests of un- known, and unborn heirs of the trusts’ settlor and of the life trusts, against beneficiaries to be taxed the income and corpus (CL 1948, of the trusts 702.45-702.49). §§ Rehearing—-Attorney 3. Costs — Pees —Trusts. rehearing Costs of against petitioners allowed trustees who sought court compromise agreement respecting References for Points in Headnotes 2, 6, 8, [1, Jur, 54 Am 636.1, Trusts (Supp). 9] 636.11 §§ attorney’s Allowance of in, of, other beneficiary respecting trust. 9 ALR2d 1132. Jur, 14 Am 14 Am [3] [4] [5] [7] Costs 95. § Jur, Costs 6. Trusts Costs 26. § Jur, Jur, 54 Am 14 Am trust, ambiguous testamentary provisions construction opposing the trustees are where successful assessment of trust estate. *2 Separate Opinion.
Dethmers, O’Hara, and JJ. á. Costs —Statutes—Court Rules. Generally, governed by are or costs statute court rule. Ambiguities—Compromise Agreement Approval. 5. Trusts — — Statutory proceedings, designed initially nonadversary, bring to might parties who courts have or have a before beneficial who, by legal interest in an estate or trust but virtue fund of disability, represent are to or unable themselves enter into agreement resolving principally an to allow differences resolving settlements, ambiguous provisions, controversies over approval minors, to made with to the court so as bind of heirs, persons (CL unborn 1948, seq.). unknown and et 702.45 § Compromise Agreement Attorney op 6. Same — — Pees —Discretion Court. flowing The court-approved compromise fact benefits agreement binding upon adult, minor, and unknown heirs involved in preservation of, trust estates did not result in or to, additions trust preclude estate would not an award attorney estate trust should trial court of fees from 1948, in his (CL discretion make allowance 702.45 § therefor seq.). et op Litigation op Equity- Expenses 7. —Discretion Court. — equity 'making power, An court has discretion and an award costs apporiion and costs of of parties according equitable between the principles appli- particular case, cable to the apportion- and of apportionment facts ment or denial will not be disturbed unless of appears discretionary power has been abused. op Expenses Litigation Approval op Compromise 8. Trusts — — Agreement. expense including litigation, attorney and of fees litem, effecting judicial costs involved in of agreement compromise between involved of tryst -estate, legal in a testate or some whom under are of disability legal disability and others whom under even unknown, any statutory provi- in the absence or court rule 214. approve disposed authorized sion, the court seq.). 1948, agreement (CL et 702.45 Expenses—Remand—Equity. Attorney Fees — 9. Same — expenses, fees, $37,500 $555 Bequest for for guardian $6,050 ad litem fees for approval respecting compromise secure testamentary determi- ambiguous be remanded trust should propriety amount court as to the trial nation awarding awarding or not the exercise his discretion (CL principles equitable involved with in accordance seq.). 1948, et 702.45 S.), (Edward Wayne; Piggins Appeal from (Calendar Docket No. 4, 1964. June Submitted April 50,383.) No. Decided Gray and others Frances In the case of Ryan, trus- Long Mack successor Irvin ap- Gray, following Paul R. under the will of tees petitions compromise agreement, were proval of *3 Cudlip, Wright, Lewis McKean & Dickinson, filed Lane, and others & fees M. Watkins, Samuel charged expenses guardian ad litem to be and motions trustees’ From the estate. denial summary judgments, petitions and enter to dismiss Supreme they appeal. equally is Court Affirmed reversal affirmance divided between and affirmed as fees for beneficiaries to counsel fees guardians ad litem. for the See February Rehearing granted Mich 144. 372 part, part. in in Affirmed reversed Wright, Cudlip (Robert E, Dickinson, McKean <& Ledwidge, counsel) ; J. and Patrick McKean counsel), (Clarence Boldt, Jr., Watkins Lewis & J. personis. propriis inall Long, Long, Ryan, Spicer (Irvin Franseth & Ryan. counsel), Long and for trustees 217 v. Rehearing. On (for and reversal in Souris, affirmance part). Long (1963), In Merkel Mich Mr. writing Chief Justice and for himself three Carr, of this that a members concluded Court, pay chancellor order out trustees to of the the funds trust estates the reasonable fees attorneys representing petitioning for the rendered services authority, their clients. For the Chief Justice relied squarely upon Greenough of Trustees v. doctrine (1881), (26 Sprague 1157), L US 527 ed (1939), (59 Ticonic National Bank 307 US CtS 1184). L 777, 83 ed rehearing, writing Mr. Justice now on con- Adams, Greenough
cedes that the doctrine of and the inapplicable is resulting case, to the facts of “preservation
in no of or additions to the trust estates”. Justice Adams likewise concedes that statutory authority support there no or rule power by the exercise of chancellor such Having inapplicability cases. conceded Sprague, which authorities Justice relied did, Chief to reach the result he Carr having statutory conceded the absence of authority support rule of such Justice result, result, nonetheless reaches the same but this Adams great time on the asserted basis of the inherent powers of a chancellor to avoid “an re- sult”. agree opinion with as said my I I remaining
for the im- members the Court our *4 mediately preceding decision in 372 Mich case, this at that valid doctrine of as (as adopted by it has been this Court appropriate for use in this circumstances State Shingle by our in Sant Perronville decision Co. op the Court. to the trusts 42), any 179 Mich absent benefit [1914], by Chief such, misapplied the doctrine as I with case. Justice agree Justice to the facts this or rule author- that is no statutory Adams also there at- taxation of petitioners’ for the chancellor’s ity also to avoid “an trusts; that, torney against inherent would have inequitable result”, out of the require such fees payment funds these trusts.
However, I fail to persuaded by Justice Adams’ assertion that result could occur any case, this of tax- case, any by similar virtue litem against ad ation of the fees of the the trusts, affirmed the Court’s decision prior herein, and disallowance of taxation of petitioners’ attorney fees In the against place, trusts. first none the cases cited all of by Justice exhaustively which were considered in our prior of in- opinions, lends his assertion any support Not even Chief who relied equity. Carr, upon those much squarely cases, suggested so stood for the that a proposition chancellor may award such whenever attorney fees failure do might so “produce inequitable result”.
Second, no would fact occur inequity dis- allowance of In requested costs. I view take of matter, coun- engaged those who sel to initiate this and should sat- would isfy their contracted for at- individually obligations torney funds, their own other private as do private while litigants, only fees of the guard- litem, ians by the chancellor appointed assist him in of the protecting incompetent, interests unknown, and unborn heirs trusts’ settlor and of the life of the trusts, beneficiaries would taxed trusts. Indeed, my prior opin- on ion I original wrote for hearing, four members of the Court that a part of the fees of the guardians *5 -219 Opinion op the Court. paid directly ad litem he should from income of the allocating petitioning trusts thus to the life bene- ficiaries who instituted this whose and for primary benefit its fruits are destined sub- part providing stantial of the cost of the services guardians necessary by pro- of the ad litem made ceeding they initiated. again, I would affirm the
Once chancellor’s denial petitions of the trustees’ motions dismiss guardians of the ad litem fees and reverse his peti- denial of the trustees’ motions dismiss the attorneys tions for the proceeding. who Further, instituted this I would allow trustees to tax their costs of this rehearing against petitioners below. T. M. Kavanagh, J.,C. and Black JJ., Smith,
concurred with Souris,
J.
(dissenting
part).
J.
This case was be-
Long,
Court in
1,
fore this
Merkel v.
Mich
368
where-
Dodge
approved,
in a so-called
act1
was
Long,
and Merkel v.
guardians ad litem. Previously the difference the Court was over whether there a direct benefit to the trust es proceedings. aas tates résult of Chief Justice ance with the benefit, and, found such a in accord Carr Greenough, doctrine Trustees v. 105 (26 1157), 527 L US ed v. Ticonic Na (59 tional 1184) Bank, US 161 307 S Ct L 777, 83 ed recognized by this Court Sant v. Perronville Shingle Co., 179 Mich Becht 42, and v. Miller, 279 1 1921, 249, code, PA No probate re-enacted PA 1939, 288, (OL 1948, seq. No ch 702.45 et §§45-48 [Stat Ann Rev 27.3178(115) seg.]). et Mich by Adams, trial authority affirmed he
Mich attorneys fees to award judge to the no benefit found litem. Souris one benefit estates, distinguishing trust award to would have denied He to the beneficiaries. *6 juris but would have sui attorneys parties ad litem. to the award permitted statute by are governed rule, As a general Ann (Stat 600.2405 1961, § See CLS or court rule. thereo comment and committee 27A.2405) 1962 Rev § statutory authority support no n.2 There is by which was asserted of the power exercise action been provision chancellor. Nor has powers rule-making Court under its by made this Ann 1961, (Stat in 600.2401 § CLS provided chancery have Courts 27A.2401). 1962 Rev of inherent drawn their reservoir upon sometimes party to a to award reasonable powers is question rehearing The litigation.3 to ex permitted the chancellor should whether one of power The is power. question ercise such or particular propriety and not the chancellor makes an method which by precise award. to bring act designed were be-
Dodge proceedings might who have or parties fore the courts have who, in an estate or trust fund but interest beneficial are unable to represent virtue of by legal disability, or enter into dif- agreement resolving themselves Estate, in In re Peck’s It stated 323 ferences. 11, Mich 22:
Revision, These England except State. [2] See the See use same of this Henkel Final pt 2, 18.2, p discussion Sprague powers Report may v. Henkel, see Mann v. v. modified 140. Ticonic National possessed by Joint 282 Mich common-law Committee Day, the Constitution and laws of this our circuit Barilo, supra, 478. For an Mich practice on Michigan judges as it existed pp example Procedural 164, chancery 165. __ Opinion dissenting part by purpose principally “The of the act was to allow settlements be made with of the court so as to bind minors unborn and others heirs whose existence or cannot be whereabouts ascertained.”
Trustees and cases hereinbefore proceedings bring cited involved about restitution property preservation to a fund, of a fund from wrongful analogous acts of the trustee, some purpose contemplated situation. No such in a Dodge proceeding (though may act he an inci accomplishment), primary purpose dental being by agreement ambiguity the resolution of an trust instrument. begins
A nonadversary aas only one instituted after has been reached legal disability. not under some It may adversary proceeding, become an in the sense objection that it primarily be defeated due to but thereto, nonadversary throughout.
it remains *7 agreement approve chancellor is instructed to just “found to reasonable.” CL 702- (Stat 27.3178[117]). .47 Ann 1962 Rev separate In this case there are three Each trusts. beneficiary upon trust has its own life whose death principal the of the trust is to distributed. The ambiguity in the will made testator’s uncertain the manner in which distribution should be made. Under theory, principal among one the would be divided the heirs of the testator determined at the time death; of his under another, it would he divided among though his heirs determined he had died immediately following tenant; the death of the life among and under still it another, would be divided the issue the life Court As this observed tenant. agreement appeal, in the first elimi- possibilities nated all but last of these by Adams, nearly compatible probable manner most with the Long, intention of 368 Mich the testator. 1, 15. problem parties the fact is illustrated
that some children one of life tenants age joined younger are of abut brother and sister were unable because of to do so minority. Any one of the children could die before parent enjoy agreement, under the and, his never possible the benefit of the trust estate. It is also persons yet may being that realize the who have not come into
prime agreement. benefits (1) The benefits attained were: resolution of an ambiguity (2) in the will; the remainder of each trust probable will vest in those who were the ob- estate jects residuary disposition; (3) of testator’s principal directly of the estates will be distributed to the issue of the life tenants relieved of diminution (4) estate taxes; determination of those entitled to the remainder will aid administration; (5) plan can their own affairs with cer- tainty disposition and make of their own estates.
However desirable or substantial
these benefits
may
preservation
be, none
results
orof
additions
necessary
trust estates.
If such a result is
.the
before
under
be assessed
reasoning
of Trustees v.
supra,
v. Ticonic National Bank,
and other
cases,
dispositive
does not follow that this conclusion is
powers
the issue. The inherent
of a chancellor
equity proceeding,
in an
great.
been
noted,
has
Traditionally
reposed great
this Court has
confi
powers.
dence in a trial court in the exercise of such
Boyce
In
(p
Wendt,
tion with discretionary we treat as by Adams, that said court conclude the trial court and with did in him.” vested the discretion not abuse disability legal can no who are under The incompetent, pay mental their own counsel. being, yet others or individual minor, the protection disability, for whose benefit a under designed, vital all have a cannot. Yet the act is All have benefited in the fund. interest have their That some should achieved. the result paid guardians’ from the produce an certain to almost not, is fund, some actually is Whether result. chancellor for determination case will be remand. As by Mr. Frankfurter was said supra, p at Bank, National Ticonic 166: practice “Plainly for the historic foundation granting for the costs reimbursement part of taxable costs is than the conventional other equity authority original do chancellor to
the in a particular situation.” pp Costs, 13, CJS, The rule is stated 285, as follows: court, virtue “In suit in * * * has costs, to in it as discretion vested apportion proper be- the costs case prin- equitable according parties,
tween the particular applicable case; ciples of the to the facts discretionary power appears that this and unless not be dis- will action abused, the court’s has been denying apportioning inor costs, turbed as its apportionment.” can be It would seem empowered only fully if the chancellor effectuated ab- in the dispose that, matter, entire provision statutory rule, court any sence *9 375 by J. attorney should include to award fees and fees and costs ad litem. The bene- possible fits proceeding, beneficiaries beneficiaries of such a many because different circum- may arise, stances which can best be determined responsibility giving the chancellor who has the agreement. to the inHe, his discretion, possible and, award if fees and costs it is to do respective so, should make such awards they proceeding. interests as have benefited In the case, total of $37,500, fees guardian and total litem $555, fees requested. of $6,050have been For a determination propriety to the as to the trial the same we remand this case The chancellor is instructed to ex-
court. awarding awarding ercise his discretion in or not equitable prin- accordance with the may, ciples deny herein indicated. course, He grant any well if and costs reason he determines that should not be borne out of the trust estates.
The decision of the trial court should be affirmed. appellees. Costs
Dethmers O’Hara, JJ., concurred with Adams, J., Kelly, did sit.