City of St. Louis v. McAllister

• Decision Date: 04 January 1924
• Docket Number: 23464
• Citation: 257 S.W. 425,302 Mo. 152
• Parties: CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY, v. FRANK W. McALLISTER, Attorney-General; CHAMBERS SMITH et al., Interveners, Appellants
• Court: Missouri Supreme Court

257 S.W. 425

302 Mo. 152

CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY, v. FRANK W. McALLISTER, Attorney-General; CHAMBERS SMITH et al., Interveners, Appellants

No. 23464

Supreme Court of Missouri

January 4, 1924

Rehearing Denied January 4, 1924.

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

Reversed and remanded (with directions).

Jourdan Rassieur & Pierce and Lee W. Hagerman for appellants.

The interveners are entitled to have their allowance of costs and attorneys' fees herein claimed as a matter of law. The action of the trial Court and the Supreme Court show that the interveners were properly made parties to the record. The trial court's action in permitting the intervention and the patience with which it considered voluminous briefs, and the action of the Sureme Court which extended the interveners' time for argument in order that the case might be adequately presented, showed, of a certainty, that the propriety of the intervention is, as far as this record is concerned, a thing determined. St. Louis v McAllister, 281 Mo. 50; Brandon v. Carter, 119 Mo. 580; Supreme Council v. Nidelet, 85 Mo.App. 255; Wallen v. Wallen, 19 Mo. 668, 17 Mo. 376. As regards heirs as a general principle equity gives them their costs whatever may be the result. Daniels Chancery Practice, pp. 1382, 1383; Crow v. Crow, 11 Beav. 397; Moggrudge v. Thackwell, 5 Ves. Jr. 87, 13 Ves. Jr. 415; Archbishop of Herrford v. Adams, 7 Vesey, 324; Mills v. Farmer, 19 Vesey, 490, 1 Merivale, 103; Curree v. Page, 17 Ves. Jr. 462, 467; Beames on Costs, 25, 98; Gaffney v. Hevey, 1 Drury & Walsh, 12, 25. The American doctrine and practice in regard to allowing attorneys' fees and expenses (costs between solicitor and client) in cases like this is in accord with the English authorities cited supra. The matter in regard to charity cases is summed up briefly in Perry on Trusts (6 Ed.) sec. 747; and as regards construction of wills generally in 1 Redfield on Wills, ch. 9, sec. 10, p. 495. See Hoe v. Executors, 31 N.J.Eq. 234. The litigation in such a case is indispensable to the proper administration of the fund, and it should, therefore, bear the costs of litigation as part of the expenses incident to its administration. Jacobus' Executors v. Jacobus, 20 N.J.Eq. 49; Security Co. v. Pratt, 65 Conn. 183; Ingraham v. Ingraham, 169 Ill. 432, 471; Attorney-General v. Morris, 19 N.J.Eq. 503; Missionary Society v. Mead, 113 Ill. 375; Dean v. Home for Aged, 111 Mass. 132; Brinn v. Wright, 194 Mass. 540; Straw v. Trustees, 67 Me. 493; Dean v. Dean, 54 Wis. 23, 37; Scott v. West, 63 Wis. 588; Webster v. Morris, 66 Wis. 400; Scott v. Reeves, 77 Wis. 305.

George F. Haid and Oliver Senti for respondent.

(1) The general rule in this State is that one litigant cannot be compelled to pay the attorney fees of another, either in law or in equity. Pickel v. Pickel, 243 Mo. 641; Johnson v. United Railways Co., 247 Mo. 326, 350; In re Estate of Soulard, 141 Mo. 642. (2) Counsel fees should not be allowed out of a fund to a litigant whose interest therein is purely contingent. Drake v. Crane, 66 Mo.App. 495. (3) Costs between solicitor and client are allowable only in favor of the trustees who by virtue of their office represent the fund, and persons who intervene for their own interest, whether successful or not, are chargeable with the expenses of the litigation, outside of strictly taxable costs. Drake v. Crane, 66 Mo.App. 495. (4) The practice of inviting litigation by allowing parties to indulge in judicial controversies involving trust funds at the expense thereof, in pernicious and should not be encouraged by the courts. Will of McNaughton, 138 Wis. 179, 193. (5) Where an appeal is taken from a judgment of the circuit court involving allowance of costs, the question to be determined is not what the appellate court would have done if the case had been before it in an original proceeding, but whether the circuit court abused its discretion. Walton v. Walton, 19 Mo. 668. (6) Where the validity of the will creating a charitable trust has been upheld, a complainant seeking to establish the failure of the trust and claim the fund as testator's heir is not entitled to an allowance out of the fund for counsel fees. Tincher v. Arnold, 147 F. 665, 677. (7) Where a charitable trust is created, the heirs of the donor have no reversionary interest in the fund. Mott v. Morris, 249 Mo. 147. (8) The charitable trust created by the will of Bryan Mullanphy has been upheld in this court. Chambers. v. St. Louis, 29 Mo. 543.

Ragland, J. All concur, except Woodson, C. J., who dissents.

OPINION

RAGLAND

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 re-investing 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 plaintiffs 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. [St. Louis v. McAllister, 281 Mo. 26.]

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 conformtiy 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, (4 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...