Wilson v. Clayburgh

• Decision Date: 23 June 1905
• Citation: 215 Ill. 506,74 N.E. 799
• Parties: WILSON v. CLAYBURGH et al.
• Court: Illinois Supreme Court

215 Ill. 506

74 N.E. 799

WILSON

v.CLAYBURGH et al.

Supreme Court of Illinois.

June 23, 1905.

Appeal from Appellate Court, First District.

Suit by Harriet A. Wilson against Alice Wilson Clayburgh and others for the appointment of a trustee as successor of the trustee named in the will of William G. Wilson, deceased. From a judgment of the Appellate Court reversing an order of the circuit court allowing and taxing as costs a solicitor's fee for complainant, she appeals by virtue of a certificate of importance. Affirmed.

Kremer & Greenfield, for appellant.

Julius & Lessing Rosenthal, for appellees.

This is an appeal, by virtue of a certificate of importance, from a judgment of the Appellate Court for the First District reversing a decretal order of the circuit court of Cook county allowing and taxing as cost a solicitor's fee of $300 for complainant's solicitor, entered in a chancery suit pending in that court, brought to have the resignation of the Illinois Trust & Savings Bank, the trustee named in the will of William G. Wilson, deceased, accepted, and to obtain the appointment of a new trustee in its stead under the provisions of said will. The bill was filed by the widow, to whom the will directed the trustee to pay an annuity of $100 per month during her life if she remained unmarried, and devised and bequeathed the remainder of the estate to the Illinois Trust & Savings Bank, as trustee, and its successors in trust to be appointed by a court of chancery, for the use and benefit of the testator's two daughters, one of whom (Alice Wilson Clayburgh) is the appellee. The Illinois Trust & Savings Bank qualified and acted as trustee under said will for a time, and then sought to resign, whereupon the bill was filed making said Illinois Trust & Savings Bank and the appellee and Marguerite Wilson, then a minor, defendants.

HAND, J. (after stating the facts).

The only question involved upon this appeal is, can a court of chancery, in the exercise of its equitable jurisdiction, allow and tax as costs the solicitor's fee of the solicitor for a beneficiary under a trust created by a will, who brings a suit to have the resignation of the trustee named in the will accepted, and a new trustee appointed in his place? That question, we think must be answered in the negative. It has been repeatedly held in this state that nothing can be allowed and taxed as costs by the clerk or the court but items of costs designated by the statute to be so allowed and taxed. Constant v. Matteson, 22 Ill. 546;Strawn v. Strawn, 46 Ill. 412;Eimer v. Eimer, 47 Ill. 373;Conwell v. McCowan, 53 Ill. 363;Campbell v. Campbell, 63 Ill. 502;Roby v. Chicago Title & Trust Co., 194 Ill. 228, 62 N. E. 544;Rieker v. City of Danville, 204 Ill. 191, 68 N. E. 403. The only exception to this rule in this state is in cases brought by trustees for the construction of wills, where a will is so ambiguous as to make it necessary to go into a court of chancery to obtain a construction thereof, in which class of cases the costs of the litigation must be borne by the estate. Woman's Union Missionary Society of America v. Mead, 131 Ill. 33,23 N. E. 603;Ingraham v. Ingraham, 169 Ill. 432, 48 N. E. 561,49 N. E. 320;Arnold v. Alden, 173 Ill. 229, 50 N. E. 704.

It is urged with much earnestness that the same reason obtains in this case for the allowance of a solicitor's fee to complainant's solicitor, to be taxed as costs, and paid out of the estate, that exists in the case of a bill filed for the construction of a will which is ambiguous. Such has not been the holding of the courts (In re Holden, 126 N. Y. 589, 27 N. E. 1063), and this court could not so hold without legislating upon the subject. The question here presented has been before this court in partition suits (Strawn v. Strawn, supra; Eimer v. Eimer, supra; Campbell v. Campbell, supra), where the litigation often may be as beneficial to the defendant as...