Dunne v. Cooke

231 Ill. App. 281, 1924 Ill. App. LEXIS 42

• Court: Appellate Court of Illinois
• Decided: January 22, 1924
• Docket: Gen. No. 28,625
• Status: Published

Opinion

Mr. Presiding Justice Gridley

delivered the opinion' of the court.

Formerly it was the law of this State, following the rule in England, that a trustee appointed by a will was not entitled to compensation for Ms services in the absence of any provision in the will authorizing the same. (Cook v. Gilmore, 133 Ill. 139, 143; Buckingham v. Morrison, 136 Ill. 437, 455; Arnold v. Alden, 173 Ill. 229, 235.) But in June, 1891, an act was passed by the legislature entitled “An Act concerning compensation of trustees,” providing “that where a trustee or trustees shall hereafter act under any power or appointment given or created by any will, testament or codicil, and in such will, testament or codicil, except in case of trusts for charitable, religious or educational purposes, shall be contained no provision respecting the compensation to be allowed or paid such trustee or trustees, a reasonable compensation may be charged and allowed, demanded and collected therefor.” And in June, 1913 (Laws 1913, p. 1), said act was amended by adding the following words: “The exception in this Act, in regard to trusts for charitable, religious or educational purposes, is intended to apply only to trustees ‘of charitable, religious or educational institutions and not to the trustees created by any will, testament or codicil. The county court of the county where. the will was admitted to probate or the circuit court of such county, in case such court shall take jurisdiction of a trust estate, may allow a reasonable fee to such trustee or trustees so created by will, testament or codicil where compensation is not expressly forbidden by the terms of the will, testament or codicil. ’ ’ ’ The act, as amended, is still in force. (Cahill’s Ill. St. 1923, ch. 148, if 35.) The will in question contained no provision, respecting the compensation of the trustees named therein, and compensation to them was not expressly forbidden therein.

Counsel for appellant state in their printed brief and argument that “the errors assigned herein relate directly or indirectly to the allowance of fees to the trustee and his solicitors and to the master in chancery, and the taxation against the trust estate of costs incurred since the former appeal, and we respectfully insist that the amount allowed in favor of the trustee and each of his solicitors is excessive, and that a large portion of the services, for which the allowances respectively were made, were services for which compensation should not be charged against the trust estate.”

By the former decree of the circuit court, complainant was allowed $30,000 as compensation for his services as trustee and those of his solicitors and attorneys, Doyle and Thompson; and this total amount was divided — $15,000 for complainant’s services and $12,-000 and $3,000 for the services of Doyle and Thompson, respectively. The decree was reversed by this Appellate Court and the cause remanded (197 Ill. App. 422). In the opinion it is stated in substance (p. 439) that the bill of the trustees (praying for a construction of the will, for leave to resign as trustees and for compensation for their services and those of their solicitor, Doyle) “was not improvidently filed,” in view of the sharp conflict of opinion existing between the trustees and the beneficiaries as regards the duties of the trustees under the fourth clause of the will, and in view of the attitude talien by the beneficiaries as disclosed in the letter of their counsel, written five days before the bill was filed; (p. 440) that, although a construction of the will in regard to the personal property is no longer material to the issues because such property of the estate has been disposed of, complainant, as surviving trustee, is entitled to reasonable compensation for his services and for his reasonable expenses; that in determining such compensation “the responsibility incurred, the amount of the estate, the time and labor properly devoted by the trustee to the discharge of his duties are to be considered,” and what is reasonable compensation “depends largely on the circumstances of each case”; (p. 441) that the fact that complainant received compensation as executor does not deprive him, as surviving trustee, of his right to compensation for services rendered as trustee, provided the duties were separate (citing Arnold v. Alden, 173 Ill. 229, 237), yet the circuit court by its findings did not separate or distinguish complainant’s services rendered as executor from those rendered as trustee, although the decree finds that the trustees were paid fees of $6,000 as executors; and (p. 442) that while it is evident that the trustees in administering the trust acted in good faith and the question of the amount of complainant’s compensation should be determined upon that basis, yet he did not render services to the extent set forth in the long series of findings in the former decree, and' a total allowance of $33,000, for complainant’s fees and those of his two solicitors and attorneys, including master’s fees and a stenographer’s fee (p. 443) “is a sum disproportionate to the apparent value of the trust estate at the time of the entry of the decree, regarding the value of which the court below makes no finding,” and such total allowance “should bear a reasonable relation to the value of the trust estate,” and “due consideration must be given to the rights and interests of the widow, to whom the testator willed an annuity of $7,500 per annum, during her life.” This court, in its opinion (p. 444), also briefly stated what were the legal services, as shown by the evidence, rendered by William A. Doyle as attorney and solicitor for the trustees, which covered a period of four years, and further stated (p. 445) that the evidence tended to show that he had discharged his duties “actively and faithfully,” but held that “the duties of trustee, however, performed by Mr. Doyle, which were not legal in their character, are not properly chargeable to the estate.”

Upon new evidence in accordance with the foregoing opinion, as well as some evidence introduced on the former reference, Master Behan made findings as set forth in the above “Statement by the Court,” some of which were in substance that no allowance should be made to complainant, for reasons stated, for his services or expenses as trustee, rendered or incurred prior to July 27, 1906 (the date of the final discharge of the executors); that the present value of the trust estate was $165,000; that since July 27,1906, complainant had rendered services as trustee for which he should be allowed $9,000, and should also be allowed $7,500 for the legal services rendered by his attorney and solicitor, Doyle; and that, although the services of each were of greater monetary value, the allowances should be made at such amounts as bear a reasonable relation to the value of the estate. These allowances were confirmed by the court in the present decree. After reviewing the opinion of this Appellate Court on the former appeal, and after considering the testimony of the several witnesses, the ambiguous terms of the will, the attitude of the beneficiaries as disclosed in the letter of the attorney for some of them of November 30, 1906, the attitude maintained by appellant throughout this long and bitter litigation, the value of the estate, the fact that Charlotte H. Cooke is no longer living, and all the facts and circumstances in evidence, we have reached the conclusion that said allowances are reasonable and proper. And in arriving at this conclusion, with particular reference to the allowance for Doyle’s services, we have not considered any such services as are not legal in their character.

As to the services rendered by Joseph J. Thompson, it appears that he was first retained by complainant, as trustee, in June, 1908, and thereafter he continuously rendered faithful and efficient legal services for his client in the present litigation. In the former decree complainant was allowed $3,000 for Thompson’s services rendered up to that time, and it was contended on the former appeal that such allowance was erroneous. Although this Appellate Court reversed the former decree and remanded the cause “for such proceedings as equity and justice may require, consistent with the views herein expressed,” it is stated in the opinion (p. 445): “It is further contended that the court erred in taxing against the estate the solicitor fees allowed to Joseph J. Thompson, as solicitor for appellee in this proceeding, and that such fee should be paid by the appellee. The costs of this litigation should be borne by the estate. ’ ’ After the second hearing Master Behan found that solicitor’s fees in the sum of $4,500 should be allowed for Thompson’s services. In reaching this figure it is apparent that the master allowed the $3,000 mentioned in the former decree and added thereto $1,500 for Thompson’s services rendered on the former appeal and on the second hearing. The circuit court in the present decree allowed the $3,000, but, evidently, because it was thought that the ■ above-mentioned statement in said opinion was res judicata of the question. One of the findings'in the decree is that the “Appellate Court affirmed the decree of the circuit court entered at the former hearing allowing the trustee the sum of $3,000” for Thompson’s services, and that ‘‘such affirmance by the Appellate Court is final and conclusive upon all the parties hereto, and not subject to retrial.” But the court did not allow the $1,500 for Thompson’s additional services on the former appeal and on the second hearing for the reason, as stated in the decree, that “compensation for such services is not chargeable to or payable from the trust estate,” though the court considered that the amount was “reasonable” for the services rendered. We do not think that the statement in said opinion can properly be considered as res judicata. While the cause was remanded for further proceedings “consistent with the views herein expressed,” the decree was reversed principally because the total allowance of $30,000.00, as compensation for the services of complainant, Doyle and Thompson, was a sum “disproportionate to the apparent value of the trust estate. ’ ’ In other words, the cause was remanded generally and without specific directions. This court did not decide that complainant should be allowed $3,000 out of the trust estate for Thompson’s services as solicitor. In the case of Dinsmoor v. Rowse, 211 Ill. 317, 319, it is said: “The rule is, that when a decree or judgment is reversed and the cause is remanded without specific directions, the judgment of the court below is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred, and the lower court has the same power over the record as it had before its judgment or decree was rendered, and may permit amendments to the pleadings and the introduction of other evidence, so long as the same are not inconsistent with the principles announced by the court of review and do not introduce grounds that did not exist at the hearing in the court below.” And in Noble v. Tipton, 222 Ill. 639, 648, it is said: “If, however, the questions involved, or any of them, are not decided upon their merits by this court, and the cause is reversed and remanded to the lower court with directions to proceed in conformity with the opinion of this court, then only the legal principles involved and which have been announced in its opinion by this court will control the lower court in its further consideration of the questions involved in the case which have not been determined on their merits in this court.” The question is before us, we think, whether the circuit court erred in allowing complainant any amount out of the trust estate for Thompson’s solicitor’s fees. The general rule in this State is that “when the testator has expressed his intention in his will so ambiguously as to make it necessary to go into a court of chancery to get a construction of the will in order to determine which of two or more adverse claims to the same fund or property is valid, the costs of the litigation should be borne by the fund or property in question.” (Kendall v. Taylor, 245 Ill. 617, 621, and cases cited; Wilson v. Clayburgh, 215 Ill. 506, 507; Dean v. Northern Trust Co., 266 Ill. 205, 211; Haight v. Royce, 274 Ill. 162, 172.) In the present case the bill prayed not only for a construction of the will, but also that the trustees be permitted to resign and that allowances of compensation for their services and those of their solicitor and for expenses be made. As time elapsed the construction of the will became immaterial. It does not appear that Thompson rendered services in that branch of the case relating to the construction of the will, and Master Behan found that Thompson was employed by complainant to represent him as trustee “in the matter of having the trustee’s claim for remuneration and expenses presented and passed upon by the court.” In the Kendall case, supra, the bill was not one for the construction of a will but for the partitioning of real estate, and it was held erroneous to allow solicitor’s fees out of the funds of the estate. In the Wilson case, supra, where a beneficiary under a trust created by a will brought suit to have the resignation of the trustee named in the will accepted and a new trustee appointed in his place, it was held that the fees of the solicitor for the beneficiary could not be allowed and taxed as costs. In the Dean case, supra, it was held that the above-mentioned general rule “should receive a reasonable application.” In the Haight case, supra, it was held that solicitor’s fees “should not be charged against the entire estate in every case, as, for instance, in the case of a bill to construe a will the provisions of which are so plain that there could be no question of its meaning.” In the case of Singer v. Taylor, 91 Kan. 190, 192, where it appeared that an application had been made to the court in good faith to construe a will, but the greater part of the testimony related to plaintiff’s unsuccessful contest as to its validity because of alleged undue influence, and the question arose as to whether attorneys ’ fees should be allowed to plaintiff out of the testator’s estate, the court said: “The parties may be able to agree as to the amount of attorneys’ fees to be allowed to the plaintiff, but in the event that they are not the district court may determine as to the extent of the work done by attorneys in the branch of the case relating to the construction of the will and the value of the services rendered in the district court as well as in the Supreme Court and make an allowance for attorneys’ fees payable out of the estate.” (See also, Stevenson v. Stevenson, 285 Ill. 486, 501.) In view of the foregoing authorities and the facts of the present case, we feel constrained to hold that the circuit court erred in allowing complainant the sum of $3,000, to be paid out of the trust estate, for Thompson’s solicitor’s fees.

As to the fees of Master Browning on the first reference, the former decree fixed them at $2,500. In the former opinion this Appellate Court said (p. 445): “Further evidence should be heard to determine the extent and value of the master’s services, and as to the reasonableness of his fee.” Such evidence was presented on the second reference, and Master Behan recommended that Master Browning be allowed as fees the total sum of $2,835.67, made up as follows: (a) statutory fees amounting to $1,710.67 for taking and certifying 11,404% folios of testimony and exhibits at 15 cents per folio; (b) $725 for 145 continuances at $5 per each continuance; and (c) $400 for services, for which no statutory fee is fixed, in examining the testimony and exhibits, hearing oral arguments and preparing and certifying his original and supplemental report. The circuit court in the present decree reduced the amount, as recommended, to $2,325.67; the item of $1,710.67 was allowed; the item as to continuances was reduced to $435 (145 continuances at $3); the item of $400 was reduced to $120, but, in addition, $60 was allowed for two days’ time of the master in hearing arguments on a question of practice, and, upon request, certifying the question and his decision to the court. As to the item of $435 for said continuances, the court found that Master Browning “set said cause for hearing upon 145 different occasions, and that at the times set for such hearings, upon motion of one or the other of the parties or upon agreement, said hearings so set were continued and reset for times certain, and notices of such resetting sent, and that on many such occasions the waiting for lawyers would last one hour or more, whereby the master virtually lost the morning or the afternoon so set for the hearing.” After reviewing the evidence heard on the second reference as to Master Browning’s services, and considering all the facts and circumstances in evidence, we are of the opinion that the amount allowed by the court, less the item of $435 for said continuances, is proper, and that $1,890.67, as fees for his services, be paid out of the trust estate. We do not think that the allowance for said continuances can be justified in view of the decisions in Schnadt v. Davis, 185 Ill. 476; Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, 154, and Herpich v. Williams, 300 Ill. 540, 548. As to the including of the exhibits in making up the 11,404% folios, as testified to by Master Browning, it is said in Donham v. Joyce, 257 Ill. 112, 123: “We think a fair and reasonable construction of the statute authorizes the master in chancery to charge fees at the rate of fifteen cents per hundred words for documentary evidence introduced before him in the hearing of a cause under an order of court.” Appellant, in his assignment of errors, does not question the amount of the fees allowed Master Behan, but only urges that these fees should not be paid out of the funds of the estate. Under all the facts and circumstances in evidence, we think they should be so paid.

Our conclusion is that the decree appealed from should be reversed and the cause remanded to the circuit court with directions to that court to so modify the decree as not to allow complainant out of the funds of the estate any sum as compensation for the services of his solicitor, Thompson, and to reduce the amount allowed out of said funds for Master Browning’s fees to $1,890.67. In all other respects the decree is affirmed. Each party will pay his own costs in this Appellate Court.

Reversed and remanded with directions.

Fitch and Barnes, JJ., concur.