Zaring v. Zaring
| Decision Date | 26 February 1942 |
| Docket Number | 27603. |
| Citation | 39 N.E.2d 734,219 Ind. 514 |
| Parties | ZARING et al. v. ZARING et al. |
| Court | Indiana Supreme Court |
Appeal from Probate Court, Vanderburgh County; Albert J. Veneman, judge.
W C. Clippinger and Wm. F. Little, both of Evansville, for appellants.
Edwin C. Henning, of Evansville, for appellees.
William C. Zaring executed a deed of trust which after his death was docketed in the Vanderburgh Probate Court. There are four trustees who also are beneficiaries. The corpus is an office building in Evansville. Three of the trustees desired to appoint a bank as rental agent. The fourth objected. The three filed a petition asking authority to execute the agency agreement. The fourth appeared objected, and upon his motion a special judge was appointed who heard the evidence, entered special findings of facts and conclusions of law and order thereon, authorizing the appointment of such rental agent under contract set out in the findings. From that order or decree there is an appeal pending in the Appellate Court. The concluding paragraph of the decree reads: 'It is finally ordered and adjudged that the costs of this proceeding including the attorney fees of the petitioners and respondent be and the same are hereby taxed against the trust.'
Afterwards before the regular judge, appellee Condit and appellee Henning as attorneys for the minority trustee filed separate petitions, the former asking $250 for services as attorney for said trustee in the proceedings before the special judge and the latter asking $250 for services as attorney for said trustee in the appeal pending in the Appellate court and $125 for the cost of transcript in said appeal.
The record recites:
'And said respective petitions coming on for determination and hearing the majority Trustees, Anna L. Froelich, Ellen Lodge and William C. Zaring and also the trust herein severally and jointly object to the allowance of fees to either attorneys Condit or Henning for the reason that allowance fees to either of said attorneys are not properly or legally chargeable against the trust or the trust estate herein and the compensation of said attorneys was a matter of private contract between the respective attorneys Forrest M. Condit and Edwin C. Henning and their client Elder C. Zaring which said objections the court overruled, to which action and ruling of the court the trust and the majority Trustees herein each except.
'And the court having examined the petitions respectively filed by attorneys Condit and Henning finds a fair and reasonable fee for attorney Condit in the premises is Two Hundred and Fifty Dollars ($250.00) to which trust and the majority Trustees jointly and severally except.
'The court finds that a fair and reasonable fee for Attorney Henning in the premises is Two Hundred Fifty Dollars ($250.00) and that the cost of the transcript for appeal not to exceed the amount of $125.00 should be allowed from the funds of the trust, to which finding the majority Trustees and the trust herein jointly and severally except.'
The court made similar findings as to fees for the attorneys for the majority trustees and then entered an order which as later modified requires payment of the amounts allowed upon the direction of the majority of trustees from the funds of the trust now in possession of said bank as agent. From this order as so modified this appeal is taken.
It appears from appellants' reply brief that in the appeal before the Appellate Court it is the intention of appellants by cross-errors to contest the right of the special judge to make any order as to attorney fees as wholly outside of the issues. The record in that case discloses that not only was there no issue but also no evidence to support that part of his decree.
This trust estate was pending before the regular judge of the court and, except for the change of venue as to the particular issue, it was within his province to pass upon all matters arising in the administration of the trust including allowances of attorney fees. By his application for change of venue the minority trustee asked that one issue only be submitted for trial to a special judge. Such issue was made by his written objections to the petition of the other three trustees for 'authority and direction to enter into a proposed agency agreement.' Neither the petition nor the objections refer in any manner to allowance of fees. Assuming that there may be taken from a judge under whose direction a trust is being administered a particular contested issue requiring a hearing and determination, it seems to us that the jurisdiction so conferred upon the special judge should be confined to the narrow issue submitted to him and that all other matters must remain with the judge who has general jurisdiction of the trust. Applying this principle, it is apparent that the decree as to attorney fees made by the special judge was outside of his...
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