City of St. Louis v. McAllister

• Decision Date: 20 November 1923
• Docket Number: No. 23464,23464
• Citation: 302 Mo. 152,257 S.W. 425
• Parties: CITY OF ST. LOUIS v. McALLISTER, Atty. Gen., et al.
• Court: Missouri Supreme Court

257 S.W. 425

302 Mo. 152

CITY OF ST. LOUIS v. McALLISTER, Atty. Gen., et al.

No. 23464

Supreme Court of Missouri, in Banc.

November 20, 1923.

Rehearing Denied January 4, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by the City of St. Louis, trustee under the will of Bryan Mullanphy, deceased, against Frank McAllister, Attorney General, in which Chambers Smith and others intervened. From an order of the circuit court disallowing payment of interveners' attorney fees from the trust fund, interveners appeal. Reversed and remanded.

Jourdan, Rassieur & Pierce and Lee W. Hagerman, all of St. Louis, for appellants. Geo. F. Raid and Oliver Senti, both of St. Louis, for respondent.

RAGLAND, J.

This is an appeal from an order of the circuit court of the city of St. Louis refusing to allow costs as between attorney and client and direct their payment out of the trust fund involved in certain antecedent litigation. The facts with respect to such litigation may be briefly stated as follows:

In 1916 the city of St. Louis, as trustee under the will of Bryan Mullanphy, deceased, instituted a suit against the Attorney General of Missouri, as the representative of the general public in matters appertaining to the administration of public charities, for the purpose of having the trust fund provided by said will applied cy pres. In its petition it alleged, among other things, that Mullanphy, by his will, probated in 1859, had given and devised to it one-third of his estate "in trust to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis, on their way, bona fide, to settle in the West"; that it had accepted the trust, and since that time had been administering the fund in accordance with the directions of the testator; that at the time the will was made it could be readily ascertained who were the persons that belonged to the class designated therein as "poor emigrants and travelers coming to St. Louis, on their way, bona fide, to settle in the West," but that, owing to the change of conditions in the development of the country and the movements of population, it had become practically impossible to determine whether any given individual fell within such classification, and for that reason the application of the trust fund according to the scheme of the testator and his particular directions had become impracticable. It further alleged that the greater part of the trust fund consisted of real estate which constantly required heavy expenditures, in the way of repairs, which absorbed an undue proportion of the income for the mere maintenance of the fund. So, in addition to authority to apply the fund to charitable uses other than that specifically directed by the donor, it sought an authorization to sell the real estate and invest the proceeds, in such securities as would insure a substantial income, and at the same time preserve intact the corpus of the fund.

The answer of the Attorney General put in issue the allegations of the petition with respect to the impossibility or impracticability of applying the trust fund according to the specific directions of the testator. It also challenged the necessity or advisability of selling the real estate and reinvesting the proceeds.

After the issues were made up as between the plaintiff and the defendant, certain collateral heirs of the testator, by leave of court, filed a petition as interveners. This petition adopted the plaintiff's allegations as to the failure of the trust, but averred that the will did not permit of the construction sought by the trustee; that according to the terms of the will the fund could not be applied cy pres, but that to the extent to which the trust had failed the funds should be decreed to the heirs of Mullanphy as a resulting trust.

On a trial in the circuit court there was a decree in favor of plaintiff. The defendant and the interveners both appealed to this court. We held that there had not been a sufficient showing to warrant the finding that the trust had failed, and reversed the judgment. The question as to the construction of the will, with respect to the disposition of the fund upon a failure of the trust, thereupon dropped out of the case, and we declined to consider it. City of St. Louis v. Mc-Allister, 281 Mo. 26, 218 S. W. 312.

After the mandate of this court had been received by the circuit court, and had been made a part of the record in said cause, interveners filed a motion asking that certain expenses incurred by them in connection with the litigation, together with a reasonable and equitable counsel fee, be taxed as costs and paid out of the trust fund. The motion was overruled, and the action of the circuit court in that respect is the subject of this review.

It is a doctrine of equity that a trust fund of right should " bear the expenses of its own administration. In conformity with this doctrine it has been generally held that, in cases where doubt arises as to the true construction of an instrument by which a trust is created, and there are different claimants, the trustee may bring his bill, setting forth the facts, and calling upon the claimants to settle their rights before the court, and praying the order of the court in regard to the mode of executing the trust, and the expenses of the litigation, as respects all the parties, and as between attorney and client, are properly charged upon the fund. 1 Redfield on Wills, (4th Ed.) 493-495. In such cases the litigation is regarded as indispensable to the proper administration of the fund, it being necessary that all persons having an interest therein, or making claim thereto, should be made parties and be afforded an opportunity of being fully heard, to the end that their several rights and claims be judicially determined and set at rest. However, the persons, other than the trustee, entitled to costs in such cases, ordinarily are limited to those whom it is necessary for the trustee to bring before the court as parties, in order to obtain a valid decree to protect himself in the discharge of his duties in disposing of the...