104 F. 580 | U.S. Circuit Court for the District of Southern New York | 1900
The master was appointed to report the amount due the Western Union Telegraph Company “after allowing to said trustee (the trust company) all its just and proper charges and expenses in the premises.” The master reported that the telegraph company should be allowed “in the original litigation for services of attorneys $3,000 and for nontaxable disbursements $1.19. In the present suit, for services of attorneys $1,000 and for disbursements $159.27.” The telegraph company does not dispute the fairness of' those charges or the accuracy of the disbursements, but insists that it should not be called upon to pay them., This is the question presented by the exceptions.
The master has done exactly what he was directed to do. He was told to deduct from the amount to be paid the telegraph company all just and proper charges and expenses incurred by the trust company. He has done so. He was not directed to ascertain these amounts and charge them to the beneficiaries for whose benefit it is alleged they were incurred. He was not directed to report the amounts, so that the court could subsequently apportion them as it might then be advised. The decree was mandatory and explicit. It said to the master, “First, find out the aggregate of the charges and expenses; and, second, deduct this amount from the sum total in the hands of the trust company. The balance is the amount due the telegraph company and the other beneficiary.” There is force in the suggestion that this question is determined by the decree and cannot be reviewed upon exceptions to the master’s report. It is, however, clear that the court has power to alter an interlocutory decree to correct a mistake or prevent injustice and the question may as well, therefore, be determined on the merits.
Is the trustee entitled to deduct the amounts referred to before turning over the fund in its possession to the beneficiaries? The duty of a trustee 'in such circumstances is clearly defined. He is