Sandusky v. Sandusky
| Citation | 177 S.W. 390,265 Mo. 219 |
| Parties | SIDNEY G. SANDUSKY, Executor, Appellant, v. JAMES M. SANDUSKY, Trustee, Appellant, and RODHAM ROUTT et al., Respondents |
| Decision Date | 25 May 1915 |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Reversed.
Sydney G. Sandusky, James M. Sandusky, Martin E. Lawson, Ralph Hughes and James S. Simrall for appellants.
(1) The heirs were not trustees, and did not occupy any fiduciary relation, and did not have in their possession any fund to either hold or distribute, and the allowance of an attorney's fee to their attorneys, to be taxed as costs in the case and paid out of funds belonging to other persons was not authorized by any principle of equity jurisprudence. Kimbal v. Bible Society, 65 N.H. 161; In re Donges' Estate, 103 Wis. 497, 74 Am. St. 885; Patton v. Ludington, 103 Wis. 629, 74 Am. St. 910; Rose v. Rose Association, 28 N.Y. 184; Downing v. Marshall, 37 N.Y. 380; In the Matter of Holden, 126 N.Y. 589; 22 Ency. Pl. & Pr., p. 211, "Trusts;" 2 White & Tredor's Leading Cases in Equity, Part I (4 Am Ed. from 4 London Ed.), Am. note, pp. 548-9; Trustees v Greenough, 105 U.S. 527; Turner v. Arnold, 147 F. 665, 7 L. R. A. (N. S.) 481; White v. Land Co., 49 Mo.App. 468. (2) The heirs voluntarily employed attorneys to represent them; their attorneys, by their answer, denied the validity of the trust, and claimed the trust fund for their clients, and upon this claim are now prosecuting an appeal to the Supreme Court from the decree which denies their claim, and their fee should be paid by their clients, and, not out of a trust fund which they are endeavoring to destroy.
H. T. Herndon and Claude Hardwicke for respondents.
(1) We have no statute in this State either authorizing or prohibiting costs as between solicitor and client in chancery cases, but whenever allowance of such costs appears to have been applied for, our courts have, whether awarding or refusing such costs, acted in perfect harmony with the practice prevailing in English chancery courts. The right of respondents to their judgment for attorney's fees in this case is to be determined by the common law and statutes of England. Sec. 8047, R. S. 1909; Baker v. Crandell, 78 Mo. 584; Brandon v. Carter, 119 Mo. 572. (2) To the executor as such, it is immaterial whether the trust property in his custody goes to legatees or to heirs, provided it is disposed of in the manner that the law requires; and immaterial whether any bequest is void or valid, except that he is interested in knowing whether it is void or valid, in order that he may know what disposition he should make of the property the testatrix attempted to dispose of thereby. This is not a case in which a judgment or decree could properly be taken, or rendered, either in favor of or against any party thereto; and is not, like an ordinary interpleader suit, a suit in which anyone is seeking to recover property, or to determine the title, as between adverse claimants, to property. If it were such a suit, the court, if none of the heirs had appeared, could properly have entered judgment against them by default, and, as some of the heirs did not appear, it would have been proper for judgment or decree to have been, as to them, entered by default. But there is no property or title to property, or right to possession of property involved in this case; but the only purpose thereof is: To procure a proper answer to the following questions: What construction should be given to the bequests as to which the executor was in doubt? And what disposition should the executor make of the property the testatrix attempted to dispose of by said bequests? As stated by the Supreme Court of Michigan, In re Turner's Est., 48 Mich. 369, "Intestacy as to property purporting to be disposed of by will is a question of construction for the court, and cannot be settled by the admission of the parties." So it was the duty of the court, regardless of whether or not any of the heirs had appeared and regardless of any admissions that might have been made by parties to the suit as to the proper answer to said questions, to ascertain any and all facts that would tend to aid the court in properly answering said questions, and consider any and all law that might be either favorable or unfavorable to the validity of said bequests, and, after being fully advised, to answer said questions in accordance with the law. It was in the interest of the estate that the executor wanted said questions answered; and in the interest of the estate that the views of all parties interested be placed before the court; and that there be placed before the court any and all claims, argument and law, whether favorable or unfavorable to the validity of such bequests, in order that said questions might be properly answered. It is therefore just, proper, and equitable, that any and all parties who answered such summons, and submitted their views to the court, and such facts, arguments and law as they thought would tend to support their views, should be fully and fairly compensated for so appearing; and for submitting their views; and their right to such compensation, since they appeared at the instance of the executor, does not depend upon whether or not any of their views were adopted by the court. 1 Redfield on Wills, star page 494; Perry on Trusts, secs. 747, 891, 903; Daniel's Chancery Prac. (5 Am. Ed.), star pages 1383, 1384, 1411, 1412, 1423, 1424 and 1436; Moggridge v. Thackwell, 1 Ves. Jr. 464; Moggridge v. Thackwell, 7 Ves. 35; Bishop of Hereford v. Adams, 7 Ves. 323; Currie v. Pye, 17 Ves. 462; Rose v. Rose Assn., 28 N.Y. 184; Downing v. Marshall, 37 N.Y. 380; Dean v. Dean, 54 Wis. 305; Scott v. West, 63 Wis. 588; Webster v. Morris, 66 Wis. 400; Scott v. Nevins, 77 Wis. 305. (3) The right of heirs, who participate, at the instance of an executor, in a suit properly brought by the executor to construe or ascertain the validity of parts of a will, and which was rendered necessary by some ambiguity in the will, or some reasonable doubt as to the legality or legal effect thereof; or who, when such a suit is necessary in order that administration may properly proceed, institute such a suit, and it is made possible, as a result thereof, for administration to proceed, to compensation therefor, has been recognized, we believe, by every American court that has had such a question to consider. In New York and Wisconsin, the amount of said compensation is fixed by statute; but in other states, it is fixed by the court. Jacobs v. Jacobs, 20 N.J.Eq. 49; Noe's Adm. v. Muller's Exr., 31 N.J.Eq. 234; Dean v. Home for Aged Women, 111 Mass. 132; Morse Admr. v. Stearnes, 131 Mass. 389; Brown v. Wright, 194 Mass. 540; Drew v. Wakefield, 54 Me. 291; Straw v. M. E. Church, 67 Me. 493; Woman's Miss. Soc. v. Mead, 131 Ill. 375; Ingraham v. Ingraham, 169 Ill. 432; Arnold v. Alden, 173 Ill. 229; Lombard v. Wolbeck, 178 Ill. 396; Dean v. Dean, 54 Wis. 305; Scott v. West, 63 Wis. 588; Webster v. Morris, 66 Wis. 400; Scott v. Nevins, 77 Wis. 305; Security Co. v. Pratt, 65 Conn. 161.
A suit brought by the executor of the will of Mary E. Dorsey against her heirs and those claiming under the will to determine their respective rights was determined in the trial court against the heirs. They thereupon filed their motion for an allowance of their costs, including a reasonable attorneys' fee, to be paid out of the funds of the estate. That motion was sustained and a fee of $ 600 was allowed to H. T. Herndon and Claude Hardwicke, the attorneys for the heirs for their services in the cause.
The heirs appealed from the judgment and decree in the principal cause to this court, and the judgment was affirmed. That opinion is reported in 261 Mo. 351. The executor and James M. Sandusky, trustee under the will, appealed from the order allowing said attorneys' fee, and that appeal was sent to the Kansas City Court of Appeals, by which court it was, on motion of the heirs, transferred to this court.
Mrs. Dorsey was a widow, and died without issue. By her will she gave several legacies not necessary to be mentioned here. Clauses three and ten of the will were as follows:
Clause twelve began as follows:
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