Kimball v. N.H. Bible Soc'y
| Decision Date | 30 June 1889 |
| Parties | KIMBALL et al. v. NEW HAMPSHIRE BIBLE SOCIETY. |
| Court | New Hampshire Supreme Court |
On motion by the heirs of William Richardson for an allowance from the estate as costs for counsel fees in defending the suit by the administrators. See 23 Atl. Rep. 83.
D. Cross and Jeremiah Smith, for trustees.
Chase & Streeter, for New Hampshire Bible Society.
DOE, C. J. Mr. Richardson devised property "to be disposed of by" his wife as she should choose, and she made the seminary her residuary legatee. The seminary contended that her will was an execution of her power of disposal. The heirs of her husband contended that her will was not an execution of the power, and that the property, as his intestate estate, went to them. Thereupon, by this bill, the administrators of Mr. and Mrs. Richardson asked a decision of the question of construction. For the purpose of giving the seminary and the heirs an opportunity to maintain their respective claims, and for the further purpose of obtaining a decision by which the claimants would be bound, they were joined as defendants. In the litigation that followed between the seminary and the heirs the seminary prevailed. It was decided that Mrs. Richardson's will was an execution of the power, and that the property in controversy belonged to the seminary. The heirs now move that the fees of their counsel be paid by the plaintiffs. Gen. Laws, c. 233, §§ 1, 2. In compelling the claimants to submit to a decision of the question of construction, the plaintiffs performed a fiduciary duty. They were bound to settle the estates speedily, and not to wait for legal proceedings to be instituted by others. But they were not one of the contending parties, and the result was a matter of indifference to them. They have no beneficial interest in the property, and can gain nothing and lose nothing by an order granting or denying the heirs' motion for costs. The seminary was the only legatee that had any interest in the litigation with the heirs, and the only one that took any part in it. The other legatees might as well be required to pay a part of the taxable and non-taxable costs of the seminary as to contribute to the indemnification of the heirs; and there is no more reason for taking their property to defray the expenses of either party than for applying it to the payment of counsel fees on both sides of every other case on the docket. A part of the property claimed by the seminary on one side and by the heirs on the other was realty, and a part was personalty. The realty vested in the seminary at the moment of Mrs. Richardson's death. Of the personalty, the equitable title (including the whole beneficial interest) passed to the seminary at the same time. On the question now presented, the legal, provisional title of the administrators is irrelevant. They are mere temporary, disinterested trustees, holding the personalty for the claimant to whom it has been found to belong. While the equitable title was in controversy, the personalty remained in the custody of the law, not for distribution among all claimants, or for any other misappropriation or waste, but for safe-keeping and delivery to the equitable owner when it should be determined who the equitable owner was. The seminary's titles, legal and equitable, were not divested, impaired, or suspended by being unsuccessfully disputed. It being now ascertained that the seminary is and was the legal owner of the realty and the equitable owner of the personalty, and the question being whether the court shall or can convey a part of the seminary's adjudicated and indisputable title to the defeated claimants, it is not material whether the property is money, or a chattel specifically bequeathed, or a farm specifically devised by Mr. Richardson to his wife's appointee, or whether the ownership of it, which vested in the seminary at the termination of Mrs. Richardson's life-estate, was equitable only, or equitable and legal. As corporate property may become insecure under an inadequate conception of the fact that its owners are bodies of natural persons, so the safeguards of property committed to the care of executors and administrators, and called the "estates of deceased persons," may be affected by a vague notion that funds so held in trust during the process of administration do not belong to certain living heirs or legatees in the full equitable sense in which a workman's wages are his, or that the equitable title is less sacred than the legal title of other property in the possession of its absolute owners. Mr. Richardson's heirs, having done nothing either to save this fund for the owner or to enable the owner to get it, but having, merely done what they legally and properly could to get it from the owner, are entitled to no salvage out of it, and have no lien upon it for services performed in the prosecution of their invalid claim. The seminary's legacy in the administrators' hands is no more liable, in any legal sense, to be applied in payment of the heirs' expenses, than any other property of the seminary liable to be taken on execution. If the heirs' motion were granted, it would be, not because they are entitled to a portion of the seminary's legacy, but because, for taxable and non-taxable costs, they are entitled to a judgment against the seminary. It is true that an able presentation of each side of every case is a desirable mode of obtaining a correct decision. But this advantage does not justify either an exception in this particular class of cases or a general rule that, as to counsel fees, the losing party shall prevail.
A motion that the court convey A.'s property to B. without A.'s consent can be granted only in pursuance of a constitutional law authorizing the conveyance. Upon these heirs rests the burden of showing the legality and justice of taking property from the seminary, whose title is established by a final and conclusive judgment, and transferring it to the persons whose want of title is settled by...
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