Harrison v. Green

• Decision Date: 28 January 1904
• Citation: 102 Va. 378,46 S.E. 387
• Court: Virginia Supreme Court
• Parties: BERKELEY & HARRISON . v. GREEN.

46 S.E. 387

102 Va. 378

BERKELEY & HARRISON .

v.GREEN.

Supreme Court of Appeals of Virginia.

Jan. 28, 1904.

TRUSTS—ASSIGNMENT FOR BENEFIT OF CREDITORS—COUNSEL—FEES—CONTRACT.

1. A trustee in a deed of assignment for the benefit of creditors may, in good faith, employ counsel, and pay them out of the trust fund reasonable compensation for their services.

¶ 1. See Assignments for Benefit of Creditors, vol. 4. Cent. Dig. § 1145.

2. Evidence considered, and held that an express contract fixing the compensation of attorneys for a trustee for the benefit of creditors is established.

Appeal from Corporation Court of Danville.

Action by Berkeley & Harrison against Berryman Green, trustee. Decree for defendant, and plaintiffs appeal. Reversed.

Berkeley & Harrison, Frank W. Christian and Thos. Hamlin, for appellants.

Guthrie & Guthrie, Peatross & Harris, Julian Meade, Withers & Green, E. E. Bouldin, C. U. Williams, Cabell, Cabell & Custer, and Jas. L. Tredway, for appellee.

WHITTLE, J. The controversy on this appeal is between appellants and creditors of the late John W. Holland with respect to a fee asserted by the former, as counsel for Berryman Green, trustee, against a trust fund under the control of the court.

It appears that John W. Holland, who had become liable as indorser for his brother C. G. Holland in the sum of $156,235.10, conveyed a large amount of valuable property, real and personal, in trust to secure creditors holding indorsed notes, and other creditors of the grantor. The deed contains, among other stipulations, the following:

"It is understood and agreed that in the execution of his duties hereunder, the said Berryman Green, trustee, shall be authorized and empowered to employ counsel and compensate them for their services out of the trust funds."

By virtue of the foregoing provision, which is binding upon all creditors who have accepted the benefits of the deed, the trusteein good faith engaged appellants as his counsel to aid him in the execution of the trust. Thereupon a suit was instituted by them, in the name of the trustee, against the beneficiaries, to construe the deed, and to obtain the guidance and assistance of the court in the administration of the trust.

At the time of their retainer the amount of appellants' compensation was not fixed, but subsequently it was agreed between them and the trustee that they should be allowed a fee of $1,000, to be paid out of the trust fund. In pursuance of that agreement the trustee paid appellants $500 on account of their fee, and took a receipt from them to that effect. Afterward other trustees were substituted in the place of Berryman Green, and appellants presented a petition setting forth their contract with the original trustee, the payment made in accordance therewith, and praying that the balance of their fee might be audited...