Ingalls v. Hare

• Decision Date: 20 June 1957
• Docket Number: 6 Div. 648
• Citation: 96 So.2d 266,266 Ala. 221
• Parties: Robert I. INGALLS, Jr., as Cotrustee and Guardian, et al. v. Francis H. HARE et al. (two cases). -649.
• Court: Alabama Supreme Court

Page 266

96 So.2d 266

266 Ala. 221

Robert I. INGALLS, Jr., as Cotrustee and Guardian, et al. v.Francis H. HARE et al.(two cases).

6 Div. 648-649.

Supreme Court of Alabama.

June 20, 1957.

Jas. P. Bradford and Clifford Reeves(guardian ad litem), Birmingham, for appellants.

Lange, simpson, Robinson & Somerville, Birmingham, pro se, appellee and cross-appellant.

Waites & Tucker, Birmingham, pro se, appellee and cross-appellant.

Cabaniss & Johnston, Birmingham, pro se, appellee.

Francis H. Hare, pro se and Wilkinson & Skinner, Birmingham, for appellee and cross-appellant Hare.

LAWSON, Justice.

In several cases previously decided by this court, we have been called upon to review decrees of the circuit court of Jefferson County, in equity, which have dealt with the so-called Ingalls Trusts, which for convenience have been designated as Trusts A, B, C, D, E, F, and G.

On November 13, 1950, the circuit court of Jefferson County, in equity, in a cause bearing Circuit CourtNo. 78710, rendered a decree which in pertinent part reads as follows:

'1.The Trustees(including the complainant, but excluding the Birmingham Trust National Bank, not here involved) of the several Trusts here involved from 'B' to 'G', both inclusive, be and they are hereby separately and severally removed effective thirty (30) days from the date hereof, or as soon thereafter as their successors are appointed by the court and qualified.'

That decree was rendered in a cause where the complainants in the amended bill were: (1)Elesabeth Ridgley Ingalls and Barbara Gregg Ingalls, minors, who sued by their guardian, Robert I. Ingalls, Jr.; (2)Robert I. Ingalls, Jr., as trustee for the use and benefit of Elesabeth Ridgley Ingalls and Barbara Gregg Ingalls.The respondents to the amended bill were Robert I. Ingalls, Sr., Mrs. Ellen Gregg Ingalls, the First National Bank of Birmingham, and M. F. Pixton.Robert I. Ingalls, Jr., referred to in the decree of November 13, 1950, from which we quoted above, as the 'complainant,' is the father of Elesabeth Ridgley Ingalls and Barbara Gregg Ingalls, who for present purposes may be said to be the sole beneficiaries of Trusts 'B to G.'

Robert I. Ingalls, Jr., was a cotrustee of each of those trusts except Trust D, of which he was the settlor.The cotrustees of Trust D were Robert I. Ingalls, Sr., and the First National Bank of Birmingham.The cotrustees of Robert I. Ingalls, Jr., in the other trusts involved in Case No. 78710 at t he time the suit was filed were as follows: Trust B, The First National Bank of Birmingham; Trust C, his father, Robert I. Ingalls, Sr.; Trust E, his mother, Ellen Gregg Ingalls, and the First National Bank of Birmingham; Trust F, his mother, Ellen Gregg Ingalls, and M. F. Pixton; Trust G, his father, Robert I. Ingalls, Sr., and M. F. Pixton.

The purpose of the amended bill filed in the cause bearing Circuit CourtNo. 78710 was to have the respondents to that bill removed as trustees of the several trusts involved.There was no pleading filed seeking the removal of Robert I. Ingalls, Jr., as trustee of any of the trusts.Nevertheless he was included in the decree of removal on the theory that he had submitted himself to the jurisdiction of the court and that the evidence showed the need of new trustees to administer the trusts promptly, impartially, capably and fairly, without hindrance from self-interest.

The respondents in the cause bearing Circuit CourtNo. 78710 appealed to this court from the decree of November 13, 1950, rendered in that cause.Robert I. Ingalls, Jr., did not take a cross appeal or make cross assignments of error.

In the court below and in this court the firm of Lange, Simpson, Robinson and Somerville, of Birmingham, represented Robert I. Ingalls, Sr., and his wife, Ellen Gregg Ingalls.The firm of Cabaniss and Johnston, of Birmingham, represented the First National Bank of Birmingham, and the firm of Waites and Tucker, of Birmingham, represented M. F. Pixton.Hon. Francis H. Hare and Hon. Charles W. Greer, of Birmingham represented the 'complainant' below.

When the cause reached this court it was designated as 6 Div. 194.After submission here the death of the appellantRobert I. Ingalls, Sr., removed him as a trustee.On June 26, 1952, this court in an opinion reported in Ingalls v. Ingalls, 257 Ala. 521, 59 So.2d 898, reversed the decree of November 13, 1950, removing Mrs. Ellen Gregg Ingalls, M. F. Pixton, the First National Bank of Birmingham, and Robert I. Ingalls, Jr., as trustees of the several trusts.The cause was remanded.

On the same day that the original bill in 78710 (6 Div. 194) was filed in the circuit court of Jefferson County, in equity, a bill was filed in that court by Robert I. Ingalls, Jr., as a trustee and beneficiary of Trust A against the First National Bank of Birmingham and against his mother, Ellen Gregg Ingalls, in her individual capacity and in her capacity as a trustee of Trust A, seeking the removal of the First National Bank of Birmingham as a trustee of Trust A.That cause, which was given Circuit CourtNo. 78707, was consolidated by the trial court with the cause bearing Circuit CourtNo. 78710 for trial. §§ 221and259,Title 7,Code 1940.Both cases were submitted for final decree in July, 1950, and separate decrees were rendered on November 13, 1950.The decree rendered and entered in 78707, supra, removed all of the trustees of Trust A, including Robert I. Ingalls, Jr., although no pleading had been directed to the end that he or Mrs. Ellen Gregg Ingalls be removed.

The First National Bank of Birmingham and Mrs. Ellen Gregg Ingalls prosecuted an appeal to this court from the decree rendered in 78707, supra.Robert I. Ingalls, Jr., did not appeal or make cross assignment of error.Upon submission here that appeal was given our number 6 Div. 193.We disposed of that appeal on June 26, 1952, the same day on which we deciced 6 Div. 194.The opinion of this court in 6 Div. 193 concluded in this language:

'The decree of the lower court is reversed and the cause is remanded as to The First National Bank of Birmingham as Trustee of Trust A and also as to Mrs. Ellen Gregg Ingalls as Trustee of Trust A and the decree of the trial court is also reversed and the cause remanded as to Robert I. Ingalls, Jr., for the same reasons stated in Ingalls v. Ingalls, 257 Ala. 521, 59 So.2d 898.'First Nat. Bank of Birmingham v. Ingalls, 257 Ala. 536, 549, 59 So.2d 914, 925.

The parties in 78707 (6 Div. 193) were represented by the same counsel in the court below and in this court as appeared for them in 78710 (6 Div. 194).

After reversal by this court both suits were dismissed by the complainants, but the trial court retained jurisdiction for the purpose of considering the question of the allowance of attorneys' fees out of the trust estates and a guardian ad litem was appointed to represent the minor beneficiaries of the trusts involved.

After a hearing wherein testimony was taken ore tenus, the trial court rendered a decree, made applicable to both cases, which reads as follows:

'Decree Fixing Attorneys' Fees

'This Cause coming on to be heard is submitted for a determination of a reasonable attorneys fee for the several lawyers participating in said suit, including the Guardian ad Litem, who represented the beneficiaries of the trusts at the hearing, to be charged against the several trusts involved in this cause.(Fees fixed here shall be shared by Ingalls Trust 'A', a companion suit, in the proportion as hereinafter decreed and only a duplicate of this decree shall be enrolled in said cause.)

'There are two suits involved, but for all practical purposes, it was one piece of litigation.In cause numbered 78710, the following Ingalls Trusts were involved: 'b', 'c', 'd', 'e', 'f'/, and 'G'.In cause numbered 78707, Ingalls Trust 'A' was involved.

'The suits were vigorously prosecuted and defended.A major phase of the litigation involved rights of individuals and personalities, although the suits were filed against Trustees.The Court here is not concerned with fees which have, or are to be paid, for legal services to an individual.The fees here involved must be for legal services which inured to the benefit of the several trusts involved.Such benefit may arise from defending a Trustee or from bringing value to the trust estate.

'All of the Trustees were removed by the Court below.This resulted in an appeal.Pending a decision on appeal, Robert I. Ingalls, Sr., died.After his death, the Supreme Court reversed and remanded the cause for further hearing.The suits were later dismissed without prejudice to the rights of counsel to have fees allowed.

'The court will consider that the Trustees as such were successfully defended.It will also give consideration to effort made by solicitors for complainants seeking ways and means to require the Board of Directors of the Ingalls Iron Works Company, to exercise an option to purchase the stock of Robert I. Ingalls, Sr., deceased, under an agreement existing between him and the Ingalls Iron Works Company.Pressure by complainants to have this option exercised was resisted.The court desired that impartial and disinterested Trustees consider the propriety of exercising said option before it expired and finally appointed three disinterested Trustees for that purpose.Because of an application to the Supreme Court for a review of this ruling, said Trustees never functioned.Eventually the option was exercised and said application to the Supreme Court was dismissed by agreement.In the opinion of the Court the exercise of said option enured to the benefit of the Trust Estates.The Court is, therefore, of the opinion that all counsel involved are entitled to be paid fixed sums from the several Trusts for services rendered in behalf of said Trusts.

'It is difficult to determine with accuracy, or measure with certainty the exact amount that should be paid for services of counsel...