St. Louis Union Trust Co. v. Fitch

• Decision Date: 01 October 1945
• Docket Number: 39479
• Citation: 190 S.W.2d 215,354 Mo. 638
• Parties: St. Louis Union Trust Company, Trustee, et al., Plaintiffs, Charles H. Clarke, et al., Defendants, Hugh A. Clarke, et al., Appellants, v. William M. Fitch
• Court: Missouri Supreme Court

190 S.W.2d 215

354 Mo. 638

St. Louis Union Trust Company, Trustee, et al., Plaintiffs, Charles H. Clarke, et al., Defendants, Hugh A. Clarke, et al., Appellants, v. William M. Fitch

No. 39479

Supreme Court of Missouri

October 1, 1945

Rehearing Denied November 5, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorius, Judge.

Reversed.

John S. Leahy, Leahy & Leahy, McClellan & Shrewsbury, H. A Hamilton and Orr, Pflager & Foulis for appellants.

(1) Each party to a litigated cause is required to pay his own counsel fees. In the absence of a statute, counsel fees are not taxable as costs and this rule applies equally to courts of law and courts of equity. State ex rel. v. Becker, 351 Mo. 769, 174 S.W.2d 181; Johnson v. United Rys. Co., 247 Mo. l.c. 348; Pickel v. Pickel, 243 Mo. 641; Leslie v. Carter, 268 Mo. 420; St. Louis v. Menitz, 106 Mo. 611; 15 C.J., p. 114, sec. 248. (2) While allowances of attorney's fees out of a fund in control of a court of equity are sometimes, in a proper case, made directly to the attorney, the right of such attorney thereto in every case is dependent upon the right of his client to such fees. If the client is not entitled to costs, including attorney's fees, out of the fund, no allowance can be made directly to the attorney. Thatcher v. St. Louis, 343 Mo. 597, 122 S.W.2d 915; Wemme v. First Church of Christ Scientist, 110 Ore. 179, 219 P. 168, 223 P. 250; Schmidt v. Ore. Mining Co., 28 Ore. 9, 40 P. 406. (3) The losing party in a mandamus proceeding is liable for the costs. Sec. 1701, R.S. 1939; 38 C.J., pp. 953, 954, sec. 759; State v. Hanley, 76 Mo.App. 635; State v. Thrasher, 182 Mo.App. 438. (4) Where a party has retained his own counsel and is duly represented, he cannot be compelled to pay the counsel fees of another party. Trimble v. Railroad, 201 Mo. 372; Stuart v. Hoffman, 108 Va. 307; Johnson v. United Rys., 247 Mo. 326. (5) An attorney is not entitled to compensation out of a common fund, unless his services have aided in creating, preserving or protecting the funds. It is also essential that the services prove fruitful to the general class. If no actual benefit accrues from the services rendered there can be no allowance of fees from the common fund. Johnson v. United Rys. Co., 247 Mo. l.c. 348; Petition of Crum, 186 S.C. 528, 14 S.E.2d 21; Matter of Holden, 126 N.Y. 589; Jones v. Harsha, 233 Mich. 499, 206 N.W. 979; In re Smith's Estate, 204 N.Y.S. 475; In re Barndt's Estate, 23 Pa. Dist. 1063. (6) The parties to an action are required to pay the costs of printing briefs, either in the circuit court or in the Supreme Court. The traveling expense of counsel attending this court shall be paid by counsel's client. Such expense cannot be allowed against other parties to the litigation unless specifically authorized by statute. Wilson v. Ruthrauff, 87 Mo.App. 227; 15 C.J., p. 270, secs. 666, 667; 20 C.J.S., p. 488.

Malcolm I. Frank for respondent.

(1) A court of equity has the inherent right to appoint counsel to protect its judicial functions, and this necessarily includes the power to allow reasonable compensation for their services from a fund under its control. 1 Story's Equity Jur. (14 Ed.), sec. 32, pp. 28, 29, secs. 57, 58; Clark v. Austin, 340 Mo. 467, 100 S.W.2d 977; State ex rel. Hensick v. Smith, 5 Mo.App. 427; In re St. Louis Inst. of Christian Science, 27 Mo.App. 633; Paxson v. MacDonald, 97 Mo.App. 165; Jones v. Yore, 142 Mo. 38; State ex rel. v. Dearing, 180 Mo. 53, 79 S.W. 454; In re Richards, 333 Mo. 907, 63 S.W.2d 672; Trustees of Internal Improvement Fund v. Greenough, 105 U.S. 27, 26 L.Ed. 1157; Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. (2) In a suit to construe trust deeds, the trust fund must bear the costs of its own administration. St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104; Coffman v. Gates, 110 Mo.App. 475; Ingraham v. Ingraham, 169 Ill. 432, 48 N.E. 561; Fifth-Third Union Trust Co. v. Davis, 55 Ohio App. 377, 10 N.E.2d 4. (3) It is a fundamental principle of equity that a fund which has been increased or protected by the services of an attorney should bear the expense of the allowance of his fees. Trustees of Internal Imp. Fund v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; United States v. Equitable Trust Co., 283 U.S. 738, 75 L.Ed. 1379, 51 S.Ct. 639; Central Railroad v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915; Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; Winton v. Amos, 255 U.S. 373, 41 S.Ct. 342, 65 L.Ed. 684; United States v. Palmer, 128 U.S. 262, 9 S.Ct. 104, 32 L.Ed. 442; Mecartney v. Guardian Trust Co., 280 F. 64; Wallace v. Fiske, 80 F.2d 897; Buford v. Tobacco Growers' Co-op. Assn., 42 F.2d 791; Nolte v. Hudson Nav. Co., 47 F.2d 166; White v. University Land Co., 49 Mo.App. 450; In re Thomasson's Estate, 350 Mo. 1157, 171 S.W.2d 553; Carlson v. Revere Beach Co., 116 N.E. 409; Clancy v. Luytes Realty Co., 321 Mo. 282, 10 S.W.2d 914; In re Rice's Estate, 150 Wis. 401, 137 N.W. 778; Woodruff v. N.Y.L.E. & W.R. Co., 129 N.Y. 27, 29 N.E. 251; Seibert v. Minneapolis & St. L. Ry., 58 Minn. 58, 57 N.W. 1068; Davis v. Bay State League, 158 Mass. 434, 33 N.E. 591; Winslow v. Ferguson Corp., 153 P.2d 714. (4) There is no equity arising on this record to support the claim of the appellants that they have become parties to this proceeding and have the right to appeal; the relief sought by their appeal should therefore be denied and the judgments appealed from should be affirmed, agreeable to the requirements of equity arising on the record in this case. 65 C.J., p. 684; Batesville Inst. v. Kauffman, 21 L.Ed. 775; 1 Story, Eq. Jur. (14 Ed.), pp. 28, 29, sec. 30; Wallace v. Fiske, 80 F.2d 897. (5) The affidavit for appeal filed on behalf of the fifty-three persons named therein was unauthorized. Sec. 1186, R.S. 1939; Zearfoss v. Zearfoss, 112 N.J.Eq. 530, 164 A. 893; Ingraham v. Ingraham, 169 Ill. 432, 48 N.E. 561; Trautz v. Lemp, 334 Mo. l.c. 1094; Jones v. McGonigle, 327 Mo. 457; 21 C.J., p. 174.

Ethan A. H. Shepley, Frank H. Fisse and Harry W. Kroeger for St. Louis Union Trust Company, Successor Trustee, as amicus curiae.

OPINION

Gantt, J.

Action on motions of attorney Wm. M. Fitch for attorney fee and expenses. They are motions in the case of St. Louis Union Trust Company and Allen C. Orrick, Trustees of Hazlett Campbell's estate. On the death of Hazlett, said trustees petitioned the court for a construction of the trust deeds under which they had possession of the property, identification of the beneficiaries under the trust, and for instructions on administration of the trust. The motions were considered together and judgment was for $ 16,500 attorney fee and judgment for $ 584.75 expenses against the trust fund. Certain beneficiaries appealed.

The property involved was owned by Robert and Virginia Campbell. In 1877 they executed to trustees a deed of settlement in favor of their sons Hugh, Hazlett and James. In 1885 the trustees executed a trust deed to James Campbell as trustee of Hazlett's estate. Hugh Campbell succeeded James Campbell as trustee of the estate. On his resignation the St. Louis Union Trust Company and Allen C. Orrick succeeded him as trustees of the estate. The trust deed of 1885 was executed under the terms of the deed of 1877.

In the instant case, in which the motions under consideration were filed, the court below construed the deeds above mentioned as vesting in Hazlett Campbell a life estate in the trust property in the possession of the St. Louis Union Trust Company and Allen C. Orrick, trustee, with remainder to his heirs as purchasers. The question of beneficiaries was referred to a commissioner, who named one hundred sixty-one as the persons entitled to participate as beneficiaries under the trust. On motion of the beneficiaries, the court made an order of partial distribution in the sum of $ 540,000. For cautionary reasons the trustees filed an exception to the report of the commissioner in which they claimed that the commissioner omitted seventeen named persons who were entitled to be included as beneficiaries under the trust. The court overruled the exception and entered judgment in favor of the one hundred sixty-one persons named by the commissioner. The trustees filed an affidavit for appeal from the ruling of the court on the exception to the report, and also filed an affidavit for appeal from the order of partial distribution, which appeals were denied. Thereupon the trustees filed in this court petitions for mandamus to compel the chancellor below to grant the appeals. Alternative writs of mandamus were issued and served on the judge below.

Furthermore, Yale University entered the litigation by filing an answer. In substance it alleged that Hazlett Campbell had no inheritable interest in the property under the original trust deed; that the reversionary interest in the property remained in the original grantors (Robert and Virginia Campbell); that upon their deaths the property descended under the statute, and that Hugh Campbell devised and bequeathed his undivided one-half of the property to the university. The chancellor below dismissed with prejudice the answer of the university. The university filed affidavits for appeals from the ruling of the court on the answer and from the order of partial distribution, which appeals were denied. The university filed in this court petitions for mandamus to compel the chancellor below to grant the appeals. Alternative writs of mandamus were issued and served on the judge below.

Furthermore the public administrator of the City of St. Louis also entered the litigation by filing an answer and cross bill in three counts. In substance he...