23 Haw. 245 | Haw. | 1916
In the decision in this case (ante p. 201) we held that the income arising from the trust estate created by the will of the testator Rhodes constitutes a resulting trust, by operation of law, in favor of Ada Tree Rhodes Williamson, the daughter of said testator, and that she is entitled to the whole of the said income as against her infant daughter, the residuary beneficiary. The attorneys for Mrs. Williamson now move the court to allow them a reasonable fee for their services rendered in this case, the same to be paid out of the principal of the trust estate. The attorneys for Ellen Tree Williamson, the infant, who appeared by her father as natural guardian, also move for
In our opinion this is a controversy in regard to a trust separate from the principal trust, and the attorneys’ fees which we are asked to allow are not payable out of the principal trust or corpus of the estate. In Grimball v. Cruse, 70 Ala. 534, it was held that the attorneys’ fees for services rendered a claimant are not chargable to the trust estate. There is more reason for holding that this rule should apply to an unsuccessful claimant, as is the case of the infant, Ellen Tree Williamson, than where the claimant is successful. In Floyd v. Davis, 98 Cal. 591, the rule is announced that services rendered for the benefit of a certain fund, if allowed, should be charged to that fund, and that in a contest between various trusts created by a will each
For the reasons above given the motion of counsel for Mrs. Williamson to allow them an attorney’s fee out of the corpus of the estate is denied.
As to counsel for the infant, appearing by her father as natural guardian, unsuccessfully, we hold that their fees are not payable out of the corpus of the trust estate. In Hobbs v. McLean, 117 U. S. 567, the court lays down the rule that the litigation must be in advancement of, and not in opposition to, the interest of all the beneficiaries or no allowance of counsels’ fees out of the trust fund will be made. The rule is w^ell established that where one beneficiary successfully maintains an action to recover or preserve the trust property for the benefit of all the beneficiaries under circumstances which would have entitled the trustee to reimbursement had he brought the suit, costs and expenses may be allowed such beneficiary out of the principal of the trust fund (Seibert v. Minneapolis etc. R. Co., 58 Minn. 58; Drake v. Crane, 66 Mo. App. 495; Florida Internal Imp. Fund v. Greenough, 105, U. S. 527). It is well established that fees of counsel for a litigant whose interest is contingent cannot be allowed out of the trust
We are cited to the case of Fitchie v. Brown, 19 Haw. 415, as establishing a rule authorizing the payment of the fees of counsel to the various claimants in this case out of the corpus of the trust estate. That decision shows that it was regarded as an exceptional case, the court saying: “In a contest concerning the construction of a will it is only under exceptional circumstances that the estate of a decedent should bear the expenses of an unsuccessful appeal from a decree of this court. * * * The question involved in their appeal, however, was novel and important and the amount involved was very large.” The rules and authorities relating to the allowance of counsels’ fees out of trust funds are not there discussed nor considered. We do not consider the decision in that case as an authority generally for the payment of counsels’ fees for diverse claimants to a particular fund out of the principal trust fund, and, therefore, as not controlling here.
The motion of counsel for Ellen Tree Williamson, the said infant, for the allowance of attorneys’ fees out of the corpus of the trust estate, is denied.