Troy Bank & Trust Co. v. Brantley, 4 Div. 767

• Citation: 82 So.2d 618,263 Ala. 428
• Decision Date: 30 June 1955
• Docket Number: 4 Div. 767
• Court: Supreme Court of Alabama
• Parties: TROY BANK & TRUST COMPANY, as Trustee, v. Oliver W. BRANTLEY et al.

Page 618

82 So.2d 618

263 Ala. 428

TROY BANK & TRUST COMPANY, as Trustee, v. Oliver W. BRANTLEY et al.

4 Div. 767.

Supreme Court of Alabama.

June 30, 1955.

Rehearing Denied Oct. 13, 1955.

Marion Rushton, Montgomery, and J. H. Wilkerson, Troy, for appellant.

John Patterson, Atty. Gen., pro se.

Oliver W. Brantley, Troy, Files Crenshaw, Steiner, Crum & Baker and Ball & Ball, Montgomery, Alto V. Lee, III, Dothan, and John W. Lapsley, Selma, for appellees.

MAYFIELD, Justice.

The genesis of the present litigation is found in the cases of Henderson v. Troy Bank & Trust Co., reported at 250 Ala. 456, 34 So.2d 835; and Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 61 So.2d 817. These two cases are commonly known to the Bench and Bar of Alabama as the Henderson Will Cases.

Presently before us for consideration are two decrees rendered on the complainant-appellees' collateral petition for an award of counsel fees and expenses incurred in the prosecution of this litigation. These two decrees awarded solicitors' fees, fixed the expenses, and taxed them as costs under the provisions of Section 63, Title 46, Code of Alabama 1940, and the decision of the Supreme Court rendered in the Tumlin Case, supra. It is from the trial court's decrees, rendered on this petition that the appellant perfected this appeal here.

We are not here concerned with the principal controversy revolving around the validity of the trusts created by the late Governor Henderson's will. This matter, after protracted litigation, has been laid at rest by the decisions in the two abovecited cases. The single inquiry brought into focus by the assignments of error, is the propriety of the nisi-prius court's action in awarding solicitors' fees and expenses to the appellees' solicitors, who were, in the main, unsuccessful in their major contention, and taxing these items as costs against the respondent-trustee.

The first decree in this proceeding, dated 17 March 1953, which overruled appellant's demurrer, not only delineates the facts of the present controversy, but sets out the contentions of the opposing parties and summarizes the law applicable to these contentions. For a better understanding of the present case, this decree is set out in extensio:

'Opinion and Decree on Complainants' Petition for Allowance of Attorneys' Fees and Expenses and Respondents' Demurrer Thereto.

'This matter has come on for hearing before the undersigned Judge on the 15th Judicial Circuit of Alabama, sitting in equity, in the Circuit Court of Pike County, in Equity, by special designation of the Chief Justice, and by agreement of all the parties concerned.

'The history of this litigation, and the result thereof, may be found in the decisions of the Supreme Court of Alabama in 250 Ala. 456, 34 So.2d 835; and Ala. , 61 So.2d 817. In the latter decision of that Court, some of the Justices concurred, and some concurred in the result, or specially, and two of the Justices dissented. All of the Justices, however, concurred Per Curiam in rendering this judgment:

"The judgment heretofore rendered is modified so that all costs which have accrued in this case be taxed against Troy Bank & Trust Company, as Trustee.'

'Following that, complainants filed their petition in this cause seeking allowance of a reasonable attorneys' or solicitors' fee, together with reasonable expenses incurred in the prosecution of this litigation, to be taxed as a part of the costs herein. Respondents filed a demurrer to that petition. It was argued orally before the court on February 20, 1953, and briefs submitted by both sides, and the matter taken under consideration by the court.

'Two approaches or contentions are involved; the one that the Per Curiam language of the Supreme Court, in taxing all costs against the Trustee, intended thereby to include as part of the costs attorneys' or solicitors' fees and expenses for complainants, and consequently that such is the law of the case, and cannot be changed except by the Supreme Court which rendered that judgment. The other is that if such be not the case, this court has the judicial discretion and right under the provisions of Title 46, Section 63, of the Code, to allow and Fix for complainants such attorneys' or solicitors' fees and expenses, to be taxed as a part of the costs herein; and that the court should do so.

'To these, respondents say and contend, (1) that the Supreme Court's opinion and decision did not intend, and should not be construed, to cover complainants' attorneys' or solicitors' fees and expenses; and (2) that this court cannot and should not allow to complainants' attorneys or solicitors fees and attendant expenses, because the proceedings were adversary and also the result was contrary to complainants' contention.

'The pertinent provisions of Title 46, Section 63, of the Code are:

"In all suits and proceedings in the * * * circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust * * * the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney's fee, to be paid to the attorneys or solicitors representing the trust * * * or any party in the suit or proceeding, and is authorized to tax as a part of the costs in such suit or proceeding such reasonable attorney's fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court * * *.'

'This section of the Code is an amplification and amendment to and codification of an Act of 1903 (Acts 1903, p. 33). Unaided by statute, a court of equity has the power or right, in connection with the administration of a trust, to allow the Trustee and the Trustee's solicitors reasonable fees and expenses. So, also, should it become necessary for the Trustee to receive instructions of the court or a construction of the instrument, such fees and expenses would be allowable. As originally enacted, the Act of 1903 authorized the allowance of attorneys' fees only to the attorneys or solicitors representing petitioners in a suit or proceeding. As amended and codified, the present Code section authorizes the allowance of attorneys' or solicitors' fees to 'any party in the suit or proceeding,' which shall be taxed as a part of the costs in such suit or proceeding. This is not to say that under a literal construction of the language or words of the statute, attorneys' or solicitors' fees must or may be allowed in all proceedings and under all circumstances. The contrary is true, as stated in Bidwell v. Johnson, 191 Ala. 195, 67 So. 985 :

"The statute by its language clearly shows that much is left to the sound discretion of the court.'

'This Code section does give broader powers to a court of equity with respect to the allowance of solicitors' or attorneys' fees for all parties than the court might otherwise have. The history of this legislative Act and its subsequent amendments and codification may be found in Dent v. Foy, 214 Ala. 243, 247, 107 So. ; Bidwell v. Johnson, 191 Ala. 195, 198, 67 So. 985; King v. Smith, 247 Ala. 1, 3, 22 So.2d 336; Clarke v. Clarke, 246 Ala. 170, 174, 19 So.2d 526.

'In support of their first contention, complainants argued and showed to the court, by way of an exhibit, that the Supreme Court in its initial opinion had taxed the costs in this case against complainants because, as the Supreme Court then stated, it was an adversary proceeding and the losing party should pay the costs, under the applicable statutes relating to all adversary proceedings, but that in the later opinion of the Supreme Court, that page or statement was removed, and the Supreme Court then, in a per Curiam judgment, taxed all costs against the Trustee Appellee. Thus, according to complainants' contention, the Supreme Court intentionally changed its opinion, in which it had stated that the proceedings were adversary and accordingly that costs were taxable against complainants, and by its later opinion reached a different conclusion and taxed all costs against the Trustee Appellee, which could include reasonable attorneys' fee under Title 46, Section 63, of the Code. In support of this contention, this Court's attention was called to the statement made by the Supreme Court in its opinion in Thurlow v. Berry, 247 Ala. 631, 25 So.2d 726 :

"Let the trustee pay the costs.'

and it was stated by complainants by way of precedent that pursuant thereto not only were all court costs taxed to and paid by the Trustee, but in addition reasonable attorneys' fees and expenses of all parties, including the losing parties. In further support of the first contention, complainants stated in argument that in the case of Ramage v. Ramage, Ala. , 61 So.2d 432 , where the Supreme Court in its opinion said:

"Let the trustee pay all the costs. Thurlow v. Berry, 247 Ala. 631, 25 So.2d 726.'

not only that the Trustee was required to pay court costs, but also attorneys' fees and expenses for all parties, including the losing parties. Since that suit was tried in this court, this court knows by way of precedent--whether or not it has in the case at bar judicial knowledge of the record in that case--what occurred in that case, viz.: that it did allow and fix for all parties thereto a reasonable solicitors' or attorneys' fee plus reasonable expenses.

'In the light of the above, this court is inclined to the opinion that the Supreme Court, in its Per Curiam judgment, intended to tax the Trustee not only with court costs, but all other costs, including reasonable attorneys' fees and expenses which are permitted to be taxed under the provisions of Title 46, Section 63, of the Code above quoted.

'The second contention or issue involves the power vel non of a court to allow, under the provisions of said Code section, reasonable attorneys' or solicitors' fees to complainants, together with reasonable expenses in connection with this litigation; and also...