17 A.2d 455 | Pa. Super. Ct. | 1940
Argued October 2, 1940. These appeals are from a decree of the court of common pleas, ordering the payment of a counsel fee out of the principal of a trust fund created under deeds dated April 2, 1903 and March 24, 1906, to counsel representing a minority interest of those entitled to the trust fund in remainder.
The services for which the counsel fee was awarded were rendered in connection with litigation involving the trust fund, which culminated in the case reported as Smaltz' Trust Estate,
On January 29, 1936, Mrs. Rumsey executed a deed purporting to cancel the trust, in exercise of the power to revoke or cancel same reserved under the deed of April 2, 1903. On April 1, 1936 the trustees filed their first *465 account. The petition for adjudication of the account and of the balance of principal and interest shown therein, set forth that the account was filed because of the execution and delivery by Mrs. Rumsey of the said deed purporting to revoke the trust; and that the question which required adjudication by the court was whether the deed of January 29, 1936 was effective as a cancellation; it being the contention of Mrs. Rumsey that the alleged release of the power of cancellation contained in the deed of March 24, 1906 constituted an "engagement, alienation or anticipation" prohibited by the deed of April 2, 1903 creating the trust.
The prayer of the petition was that the account be confirmed, the income awarded to Mrs. Rumsey and "that the principal be awarded to the person the court decides is entitled thereto". Ten "remaindermen" having an interest in the continued existence of the trust were notified by attorneys for the trustees of the filing of the account and the petition.
Francis F. Burch (the petitioner in the present proceeding) entered his appearance for six of the "remaindermen", having a collective interest of less than one half. It appears from the petition and answers, the depositions taken in the present proceeding and the docket entries therein, that petitioner prepared an answer to the trustees' petition for distribution; prepared briefs and made oral argument to the court in opposition to the termination of the trust. The attorney for the trustees also filed a brief opposing the termination of the trust. The court filed an opinion refusing to terminate the trust and distribute the principal, to which the trustees filed exceptions — not to the ruling that the trust could not be revoked, but to the failure of the court to award the corpus to the trustees. Mrs. Rumsey, on her individual account and by her own attorney,
filed exceptions to the failure of the court to terminate the trust and award the corpus to her individually. The petitioner herein prepared and filed *466
a brief opposing the exceptions filed by Mrs. Rumsey but notthose filed by the trustees. Mrs. Rumsey's exceptions were dismissed, the trustees' exceptions were sustained and the corpus was awarded to the trustees. Petitioner unsuccessfully opposed a rule concerning the advancement of costs on appeal; and in the appeal to the Supreme Court, he prepared the paper books — the attorney for the trustees appearing also on the book — and made the oral argument for appellees, following which, the Supreme Court affirmed the decree, but ordered the "costs to be paid out of principal". See Smaltz' Trust Estate,
The petitioner has undoubtedly rendered valuable services and should be paid, but he has not shown that his fee should be paid from the trust fund. A trustee is not a mere stakeholder. Upon him is imposed the duty of defending the trust and preserving its assets (Scott: Trusts Vol. 2, sec. 178, p. 941; 65 C.J., Trusts, sec. 561, pp. 694, 695) and he has the right to defend it by counsel, whose fee is a proper charge against the trust: Scott: Trusts, Vol. 2, sec. 188.4, p. 1005 and sec. 244, p. 1406; Appealof Manderson,
If an attorney's services to his client create a fund for the benefit of others, he is often allowed a counsel fee out of the fund, as in Schwartz v. Oil Co. Marvin's Appeal,
Many pertinent passages could be cited from these cases but it will suffice to quote the language of Mr. Justice LINN in his discussion of cases on the point in Peoples-Pittsburgh Trust Co.v. Pittsburgh United Corp., supra, at page 112: "The general rule is that a trust estate must bear the expense of its administration and the cases show that when a claim for counsel fees is made it must appear that the services for which fees *468 are claimed were necessary; incidental benefit to cestuis is insufficient."
All that the petitioner in the present case has shown is that he performed services for his clients, who were interested in opposing the revocation and termination of the trust, and that his services likewise benefited the remaindermen whom he did not represent, and paralleled those of the attorney for the trustees,1 who were defending the trust against attack. He may have done more work than the latter, but it was not done at the request of the trustees, nor can he say on this record that but for his efforts the fund would have been improperly handled by the trustees or by the court to which they were responsible. It can be said here as was said in Harrison's Estate, supra, at page 510: "We are unable in any way to distinguish the present case in principle from that just cited. [Com. v. Order of Solon, supra]. The fund was in the hands of the court, and in no jeopardy except from possible mistake of the court in dealing with it; and in that event nothing more was required for the correction of the error than the filing and argument of proper exceptions in the court below, and, if necessary, following the matter to the appellate court. There is no evidence that anything out of the ordinary routine of legal procedure was required. *469 The appellant was protecting her own interest, and although it may be that by means of her efforts others were benefited also, yet we know of no rule of law which will entitle her to be reimbursed for payment of counsel fees expended by her in order to protect her own interest. The services she rendered to the common interest were voluntary, and however beneficial they may have been, no legal charge for them can be sustained, in the absence of a contract of employment, either expressly made or superimposed as a matter of law or equity upon the facts."
Petitioner relies greatly on the statement of the court below that his services were necessary, but that court also said (36a): "It might be true that the trustee would have assumed the burden of a spirited defense [if petitioner had not done so]," and also said (33a, 34a): "No dereliction of duty is to be charged against the trustee. . . . . ." To say that the trustee did not neglect his duty but that petitioner's services were necessary seems to be inconsistent. It was prudent for the "remaindermen" to retain counsel to protect their own interests in the face of Mrs. Rumsey's efforts to have the legal point decided in her favor, but it is for them to pay him.
It is interesting to note that in only one of the Pennsylvania cases cited in support of the allowance to petitioner in this case, either by petitioner or the court below, were counsel fees awarded out of the fund. This is Harris's Appeal. Jacoby'sAppeal, supra; but in that case a fund was created by the attorney who represented the mortgagor of property in condemnation proceedings. It was held that the mortgagee who had done nothing to protect its interests must take the fund created, less the fee of the attorney, since, inter alia, its interests were identical with the mortgagor's in the proceeding.
The effect of the decree appealed from, if not reversed, would be, that not only the other remaindermen, who apparently relied on the attorney for the trustees to protect their interests in the fund, will be charged *470 with the major portion of appellee's fee, but also that Mrs. Rumsey, a settlor and sole life beneficiary of this fund, who had a right to a judicial determination of the legal effect of the deeds of March 24, 1906 and January 29, 1936, will not only have to pay her own counsel, but will also lose all income, during the rest of her life, on the $2000 fee awarded to the attorney who joined with the attorney for the trustees in contesting her position.
The decided cases in this jurisdiction do not support the appellee's claim. See, in addition to the foregoing citations,Hempstead v. Meadville Theological School,
The assignments of error are sustained and the decree awarding appellee a counsel fee in the sum of $2000 out of the principal of the trust fund is reversed. Costs to be paid out of the principal of the fund.
