The opinion of the court was delivered by
Me. Justice Pope.
The two foregoing actions were heard together in the Circuit Court, and have been presented in this court on appeal together. The first named is an action by a lunatic by his committee, and by such committee in his representative character and as an individual against the executors of the last will of William Ashley, the elder, and all the lega[161]*161tees and devisees under said will, and the grantees of any of the devisees under said will, for the purpose of having the executors, in the first instance, or in the event they have settled the estate of their testators, in the second instance, to have the legatees and devisees and grantees to pay a reasonable compensation, allowance or charge each year for the decent support of said lunatic, upon the ground that' the contingency contemplated by the testator, as announced in the tenth clause of his will requiring such payment, had occurred. The defendants, while admitting their liability under said tenth clause of said will to pay a reasonable compensation for the support of the lunatic in a certain contingency in said clause provided, denied that such contingency had occurred.
The second named1 is an action by the executors of the last will of William Ashley, the elder, and in their own right, and Mrs. V. V. Holman, against the committee of the lunatic, the administrator de bonis non of the estate of Joseph Ashley, deceased, and against the devisees of the lands of W. Elmore Ashley, deceased, who was the administrator of the estate of Joseph Ashley, deceased, heir at law of his estate, but is now deceased, for the purpose of upsetting an alleged pretensive settlement by and between the committee, L. A. Ashley, who succeeded Joseph Ashley as said committee of the lunatic, William Ashley, the younger, made in the year 1887.2 The defendants denied that such settlement was pretensive, collusive or fraudulent, and pleaded the statute of limitations as a bar to the action. The administrator de bonis non of Joseph Ashley, deceased, pleaded no assets in his hands, and that the estate of his intestate had been fully settled years before his appointment as administrator de bonis non.
Testimony was taken in both actions before the master, and the actions came on for trial before his honor, Judge Izlar, sitting as a chancellor. By his decree in the first action he recommitted it to the master for further testimony (his decree will be set out in the report of the case), and he dismissed the second action for failure to state facts sufficient to constitute a [162]*162cause of action, but on appeal to this court this judgment was reversed. Holman v. Ashley, 40 S. C., 421. Further testimony was taken in both cases. These causes were then heard by Judge Townsend sitting as chancellor, and on the 22d August, 1894, he filed his decree, wherein he sustained 'the plaintiff on the first action, and dismissed the second action. His decree will be reported, together with the grounds of appeal therefrom. While we do not deem it necessary to consider each ground of appeal separately, still we will dispose of all the questions suggested therein.
1 We may state the first proposition thus: was it competent for L. A. Ashley, as committee, to recover $140 each year for eight years, beginning in February, 1879, for the board and care of the lunatic? We find that the father and first committee received $140, under the decree of the Court of Equity, made in 1855, each year for these purposes, and the testimony fails to show any change in the condition of the lunatic in the period of time, eight years, here referred to, and the twenty-four years’ reckoning from 1855, during which time William Ashley, as committee, had charge of him. Appellants suggest that this $1,120 (eight years at $140 per year) ought not to be allowed, because the present committee testified in the old case of Ashley v. Holman, 15 S. C., 97, and 25 S. C., 394, that the lunatic, by the labor he was able to render in the service of the person having him in charge, really earned his support. ‘ We think this was, to say the least of it, a very unwise statement to make, in view of the decretal order of the Court of Equity made on this very subject in the year 1855, wherein the committee of the lunatic was authorized to expend from the lunatic’s estate the sum of $140 each year for his board and maintenance. It is true, the Court of Equity, in the year 1855, when it passed the decretal order referred to, did not take into consideration the ability of the lunatic to earn his own support by his labor or that the committee would receive the benefit of such services. The present committee is now brought face to face with this unwise testimony of himself, yet we are not unmindful of the facts that, at the time he made such statements, he did qualify them by stating that no ar[163]*163raugement had been made by him with Joseph Ashley, as committee of the lunatic, as to the support of the latter, and also, that L. A. Ashley was at that time under an obligation to pay his uncle, Joseph Ashley, a large debt of $7,000, and seems to have been controlled by the stronger will of the said Joseph Ashley.
The evidence seems to establish that, when Joseph Ashley, as committee of the lunatic, brought his action against the executors of his father, William Ashley, the elder, to recover from the estate of such testator the sum of $5,400, as the value of the alleged services of the luuatic, William Ashley, the younger, rendered to the lunatic’s father for twenty-seven years, at $200 per year, L. A. Ashley was guilty of a wrong when he connived at this step of his uncle, Joseph Ashley. However, we must not forget that this court decided that Joseph Ashley was not entitled to recover anything from the executors of his father’s will on account of the alleged services of the lunatic for twenty-seven years; and now, if we were to hold that this sum of $140, for each year’s board and maintenance of this lunatic, should not be paid to L. A. Ashley for the eight years’ eare of the lunatic, on the ground that the lunatic’s services, voluntarily rendered to him by L. A. Ashley, were worth his board and maintenance, we would, to a certain extent at least, be impinging upon the former decision of this court. We now say that the wisdom of the judgment of this court, as set out in 25 S. O., 394, has’been fully vindicated by subsequent events. This is a court of equity that now considers this contention, and it is necessary that our conclusions shall accord with the demands of good conscience. We are satisfied, after a careful examination of all the facts embodied in the case relating to the payment to L. A. Ashley for eight years’ care and maintenance of the lunatic of the sum of $1,120, must be sustained.
2 The next proposition maybe thus stated: What responsibility attaches, under the law, to a committee, or other trustee, in carrying on, as plaintiff, a litigation, whereby the estate of his cestui que trust may be affected, especially when the estate of such cestui que trust is imperilled, both corpus and the interest thereon, by such litigation? Now, that [164]*164it may be seen that this proposition necessarily concerns the present action, let us state the facts bearing thereon.
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The opinion of the court was delivered by
Me. Justice Pope.
The two foregoing actions were heard together in the Circuit Court, and have been presented in this court on appeal together. The first named is an action by a lunatic by his committee, and by such committee in his representative character and as an individual against the executors of the last will of William Ashley, the elder, and all the lega[161]*161tees and devisees under said will, and the grantees of any of the devisees under said will, for the purpose of having the executors, in the first instance, or in the event they have settled the estate of their testators, in the second instance, to have the legatees and devisees and grantees to pay a reasonable compensation, allowance or charge each year for the decent support of said lunatic, upon the ground that' the contingency contemplated by the testator, as announced in the tenth clause of his will requiring such payment, had occurred. The defendants, while admitting their liability under said tenth clause of said will to pay a reasonable compensation for the support of the lunatic in a certain contingency in said clause provided, denied that such contingency had occurred.
The second named1 is an action by the executors of the last will of William Ashley, the elder, and in their own right, and Mrs. V. V. Holman, against the committee of the lunatic, the administrator de bonis non of the estate of Joseph Ashley, deceased, and against the devisees of the lands of W. Elmore Ashley, deceased, who was the administrator of the estate of Joseph Ashley, deceased, heir at law of his estate, but is now deceased, for the purpose of upsetting an alleged pretensive settlement by and between the committee, L. A. Ashley, who succeeded Joseph Ashley as said committee of the lunatic, William Ashley, the younger, made in the year 1887.2 The defendants denied that such settlement was pretensive, collusive or fraudulent, and pleaded the statute of limitations as a bar to the action. The administrator de bonis non of Joseph Ashley, deceased, pleaded no assets in his hands, and that the estate of his intestate had been fully settled years before his appointment as administrator de bonis non.
Testimony was taken in both actions before the master, and the actions came on for trial before his honor, Judge Izlar, sitting as a chancellor. By his decree in the first action he recommitted it to the master for further testimony (his decree will be set out in the report of the case), and he dismissed the second action for failure to state facts sufficient to constitute a [162]*162cause of action, but on appeal to this court this judgment was reversed. Holman v. Ashley, 40 S. C., 421. Further testimony was taken in both cases. These causes were then heard by Judge Townsend sitting as chancellor, and on the 22d August, 1894, he filed his decree, wherein he sustained 'the plaintiff on the first action, and dismissed the second action. His decree will be reported, together with the grounds of appeal therefrom. While we do not deem it necessary to consider each ground of appeal separately, still we will dispose of all the questions suggested therein.
1 We may state the first proposition thus: was it competent for L. A. Ashley, as committee, to recover $140 each year for eight years, beginning in February, 1879, for the board and care of the lunatic? We find that the father and first committee received $140, under the decree of the Court of Equity, made in 1855, each year for these purposes, and the testimony fails to show any change in the condition of the lunatic in the period of time, eight years, here referred to, and the twenty-four years’ reckoning from 1855, during which time William Ashley, as committee, had charge of him. Appellants suggest that this $1,120 (eight years at $140 per year) ought not to be allowed, because the present committee testified in the old case of Ashley v. Holman, 15 S. C., 97, and 25 S. C., 394, that the lunatic, by the labor he was able to render in the service of the person having him in charge, really earned his support. ‘ We think this was, to say the least of it, a very unwise statement to make, in view of the decretal order of the Court of Equity made on this very subject in the year 1855, wherein the committee of the lunatic was authorized to expend from the lunatic’s estate the sum of $140 each year for his board and maintenance. It is true, the Court of Equity, in the year 1855, when it passed the decretal order referred to, did not take into consideration the ability of the lunatic to earn his own support by his labor or that the committee would receive the benefit of such services. The present committee is now brought face to face with this unwise testimony of himself, yet we are not unmindful of the facts that, at the time he made such statements, he did qualify them by stating that no ar[163]*163raugement had been made by him with Joseph Ashley, as committee of the lunatic, as to the support of the latter, and also, that L. A. Ashley was at that time under an obligation to pay his uncle, Joseph Ashley, a large debt of $7,000, and seems to have been controlled by the stronger will of the said Joseph Ashley.
The evidence seems to establish that, when Joseph Ashley, as committee of the lunatic, brought his action against the executors of his father, William Ashley, the elder, to recover from the estate of such testator the sum of $5,400, as the value of the alleged services of the luuatic, William Ashley, the younger, rendered to the lunatic’s father for twenty-seven years, at $200 per year, L. A. Ashley was guilty of a wrong when he connived at this step of his uncle, Joseph Ashley. However, we must not forget that this court decided that Joseph Ashley was not entitled to recover anything from the executors of his father’s will on account of the alleged services of the lunatic for twenty-seven years; and now, if we were to hold that this sum of $140, for each year’s board and maintenance of this lunatic, should not be paid to L. A. Ashley for the eight years’ eare of the lunatic, on the ground that the lunatic’s services, voluntarily rendered to him by L. A. Ashley, were worth his board and maintenance, we would, to a certain extent at least, be impinging upon the former decision of this court. We now say that the wisdom of the judgment of this court, as set out in 25 S. O., 394, has’been fully vindicated by subsequent events. This is a court of equity that now considers this contention, and it is necessary that our conclusions shall accord with the demands of good conscience. We are satisfied, after a careful examination of all the facts embodied in the case relating to the payment to L. A. Ashley for eight years’ care and maintenance of the lunatic of the sum of $1,120, must be sustained.
2 The next proposition maybe thus stated: What responsibility attaches, under the law, to a committee, or other trustee, in carrying on, as plaintiff, a litigation, whereby the estate of his cestui que trust may be affected, especially when the estate of such cestui que trust is imperilled, both corpus and the interest thereon, by such litigation? Now, that [164]*164it may be seen that this proposition necessarily concerns the present action, let us state the facts bearing thereon. In February, 1855, the Court of Equity for Barnwell appointed William Ashley, the elder, the committee of his son, William Ashley, the younger, who hau, in October, 1854, been adjudged a lunatic, and allowed the committee the sum of $140 per annum for the care and maintenance of said lunatic; aud this arrangement continued until February 22d, 1879, when such committee died. The estate of the lunatic was the sum of $2,000, derived under the will of the grand-father of said lunatic, one Josiah Stallings. On the 5th day of April, 1879, Joseph Ashley was appointed the successor of his father as said committee, and received the Stallings fund, from the executors of his father’s will, on the 22d August, 1879, then amounting to $2,070. By the tenth clause of the will of William Ashley, the elder, it is provided as follows: “I consider that my afflicted son, William Ashley, is sufficiently provided for in the estate he derived from his grand-father, Josiah Stallings, and, therefore, make no provisions for him in my will; but should the estate derived from his grand-father in any manner fail him, or should he from any other cause lack a proper support and maintenance, I direct my executors, by a fair and equal assessment of the property given to my children and grand-children by this will, to raise a sum sufficient for the decent support for my son William.”
Under these circumstances, namely: with a fund already in his hands, the annual interest from which had proved fully sufficient for his support and maintenance, aud with the lunatic in robust physical health, coupled with the fact that, under his father’s will, his whole estate, real and personal, was made liable for the support of the lunatic in case the Stallings fund failed, or in the event from aDy other cause said lunatic should lack a proper support, this new committee, Joseph Ashley, on the 13th April, 1880, in the Court of Equity, began the contention with his father’s executors, to make them pay over $5,000 for over twenty-four years’ work of the lunatic. Now no sane man can say that this suit was started to procure sustenance for the lunatic; that he already had. Nor was it that his future was precarious; for, as we have already seen, that [165]*165was absolutely secure. "What was the probable cause of this lawsuit? The testimony of at least four witnesses — and they are uncontradicted except as we shall hereafter specify — shows that it was spite aimed at his sister, Mrs. Holman, and her children, because they were beneficiaries under the will of William Ashley, the elder, and this Joseph Ashley was not so favored! As Mr. Joseph Ashley expressed it: “He did not know [whether he would win the case or not], but as far as he was concerned, he did not care anything about winning it, but wanted to show Jake Holman that he could not make William Ashley’s will.” It seems that Mr. Jacob Holman had married the daughtér of William Ashley by his second marriage, while Joseph Ashley was the son by the first marriage of his father.
We stated a while ago that this testimony is uncontradicted by witnesses; that statement is correct, but plaintiffs have referred to the result of the case of Joseph Ashley, as committee, against the executors, as set out in 15 S. C. and 25 S. C., supra, as well as to the high character of the two attorneys who were retained by Joseph Ashley to conduct this litigation — ex-Judge Maher and Mr. Isaac M. Hutson. But it no where appears in the “Case” that either one of these gentlemen was informed of his motive in bringing such action. It is not recognized as law in this State, that if an attorney or attorneys of character advise a litigation, that such fact establishes the existence of a probable cause of action. All the effect the law accords to such lawyer’s opinion is that it should be considered by the jury, or the judge when reaching a conclusion in the pursuance of such a question of probable cause or not. This is the rule as stated by Mr. Justice McIver, in Caldwell v. Bennett, 22 S. C., 9: “We think the true rule is that after the jury (this was a jury case) have been instructed as to what constitutes probable cause, as matter of law it is for them to say, from a review of all the facts and circumstances proved to have been present to the mind of the prosecutor at the time he commenced the prosecution, or to the plaintiff at the time he commenced his civil action (italics ours) whether ther.e was or not probable cause for such proceedings.”
The Circuit Judge reached the conclusion that there was probable cause in the action of Joseph Ashley against the ex[166]*166ecutors, supra, and then stopped. He did not consider that phase of the question when a trustee, by trusting to his own judgment, commences an action, whereby he risks the estate of his cesqui que trust to the extent of, not only the interest earned, but also the corpus of such estate. We have always understood the rule to be in this State, that a trustee — guardian or committee, for instance — could not trench upon the corpus of the trust estate, except under very exceptional conditions, and that if the necessities of the case should demand it, he must first obtain the leave of court. Teague v. Dendy, 2 McCord Ch., 207; Haigood v. Wells, 1 Hill Ch., 60; Villard v. Robert, 2 Strob. Eq., 40; Prince v. Logan, 1 Speer Eq., 29. While this is the general doctrine that leave should be first obtained, yet such trustee, if he can, may show that the necessity was upon him to bring suit, and thereby justify his temerity. It thus appears that not only must such trustee show probable cause, but also some overweening necessity or advantage to his cestui que trust, in order to justify his conduct. A moment will show that the rule in such cases ought to be so strict. Otherwise it is in the power of the trustee to expend the entire trust estate in fees and expenses in a lawsuit wherein' it was only hoped that the trust estate might be increased. The rule is quite different when a trust estate is attacked by third parties. Of course, in such instances the principle of self-defence, of necessity, drives the trustee to court and to the expenditure of the funds of the cestui que trust. It is not a case of may, but must.
In the case at bar, we fail to see that the propriety of a resort to a suit in equity by this trustee has been established, nor can we agree that this committee had the right thus to jeopardize this trust estate in his hands. We see by his returns that he paid his attorney $400, to expenses $144.25, and for costs $724.65, aggregating $1,266.90, out of an estate whose corpus was only $2,000, thus leaving in the hands of the committee $733.10 of that corpus, and this last amount is to be reduced by commissions and other legitimate expenses of such committee. Can a Court of Equity be expected to sanction such a destruction to a solemn trust? These sums, as proper [167]*167payments, cannot be allowed, but must be made good by L. A. Asbley in his accounting hereinafter ordered.
3 The next question may be thus stated: upon whom will a loss be visited, for allowing illegal items to enter into a settlement made by an incoming committee with the estate of his predecessor in office? It may be asked, who represented the trust estate when the settlement was made, the administrator of the deceased committee, or was it the new committee? Certainly the new committee, and not the administrator of the deceased committee. When fiduciaries take the responsibility of making settlements out of court, they must be prepared to show, when such settlements are questioned, that the items therein embraced are legal, and should be there. If they fail to do this, they must be held to be liable for such illegal items. L. A. Ashley must account for the sums improperly entering into the settlement by him with the administrator of Joseph Ashley, deceased.
4 [168]*1685 [167]*167The next question is, what shall be the form of the settlement by which the amount now in the hands of L. A. Ashley, as committee of William Ashley, shall be ascertained? We lay it down thus: L. A. Ashley shall be charged with the estate received by his predecessor, Joseph Ashley, in August, 1879, viz: $2,070. Then that account must be credited with, the commissions for receiving the same, together with $140 paid for one year’s board and maintenance of the lunatic, together with.the other legal payments made by his predecessor. The net. balance must bear interest from 22d February, 1880, be credited with $140, paid for board, and also the legal payments. We mean by legal payments, all those made by Joseph Ashley, except costs and fees aforesaid. The new balance will bear interest from 22d February, 1881, be credited with $140, paid for board, and also all legal payments. The new balance must bear interest from 22d February, 1882, be credited with $140, paid for board, and also other legal payments. The new balance will bear interest from 22d February, 1883, be credited with $140 paid for board, and also other legal payments, and so on down to 1887, when L. A. Ashley is appointed committee. In his account he is entitled to commissions for receiving and [168]*168is entitled to credit for board at $140 per year until the date of his action on 22d June, 1892. After that date such committee is allowed credits each year for $515, for the care and maintenance of the cestui que trust, and as soon as his ward’s estate is exhausted, under the accounting herein provided, he is allowed to demand that the executors of the last will of William Ashley, deceased, shall, during each year, assess, collect, and pay over to him, as committee for the said William Ashley, the younger, the said sum of $515; and in case any one of the legatees and devisees under the will of William Ashley, the elder, shall fail to pay the amount assessed against him or her by the said executors, the said legacies and devises may be sold under the process of the court by the master for Barnwell County, to raise their respective assessments for the support of such lunatic as aforesaid.
6 So much of the decree as dismisses the second action is sustained, because the statute of limitations is a perfect protection to the estate of Joseph Ashley, deceased, so far as the plaintiffs to the second action are concerned. It follows, therefore, that the decree must be modified as herein required.
It is the judgment of this court, that the judgment of the Circuit Court as to the first action be modified as herein required; and the action is remanded to the Circuit Court for the formulation of a decree, after the accounts are recast as required herein by the master for Barnwell County. It is the further judgment of this court, that the judgment of- the Circuit Court in the second action is affirmed.