July 17, 1905. The opinion of the Court was delivered by
The question in this case is whether the plaintiff, executor of the will of Mrs. Mary C. Rion, is entitled to have his attorneys' fees and commissions paid out of property which in this litigation has been adjudged to belong, not to the estate of Mrs. Mary C. Rion, but to the estate of James H. Rion. A full statement of the facts will be found in the case as reported in 68 S.C. 260,47 S.E., 376. James H. Rion by his will appointed his wife, Mary C. Rion, executrix, and left her a large part of his estate for life, with a power of absolute disposition to the children, to be executed as directed in his will. Mrs. Rion undertook to execute the power by her will. Upon her death the plaintiff, as her executor, came into possession of the property she had received from the estate of her husband, and found himself confronted by very grave questions as to its disposition. He sought the instruction of the Court by bringing an action to which all those interested in either will were made parties, it being manifestly necessary to construe both wills and fix the rights of the parties under them. So far from any objection being made to a full adjudication of all rights under the will of James H. Rion, it appears that such adjudication was sought by all parties interested, including those who now object to the payment of fees and commissions. In stating the question brought before the Court by the executor of Mrs. Rion, his Honor, Judge Klugh, said: "The obvious conflict of the
provisions of her will with those of her husband's was well calculated to create doubts in the mind of her executor as to his powers and duties. He, therefore, brings this action against the heirs at law and the devisees and legatees under the wills of Col. Rion and Mrs. Rion for the purpose of having said wills construed by the Court, his own duties defined, and the rights of the several parties under said wills ascertained and adjudicated. The defendants all answered, setting up their respective contentions." To this view of the scope of the action no objection was made by appeal or otherwise. It is true, it turned out the plaintiff was not entitled to hold the property as executor of Mrs. Rion, the Court having held that there was no valid execution of the power conferred on Mrs. Rion; but he was its custodian in good faith, and with the acquiescence of all concerned initiated the proceeding necessary to determine its ownership. As between himself and the parties interested in the property he, therefore, stood in the relation of a trustee in possession, rendering service in its management, bringing it into Court, and litigating concerning it with the acquiescence of those interested, and for their benefit. Indeed, in this view, Judge Klugh ordered the plaintiff to act as trustee of the property by adjudging "that the plaintiff, Thomas H. Ketchin, as executor of the will of Mary C. Rion, deceased, do collect and preserve the assets of the estate of James H. Rion, deceased, so far as they have come or may hereafter come into his hands, until the further order of the Court, or until some party duly authorized to receive the same shall demand them of him." To this portion of the decree there was no exception. It seems, therefore, obvious he is entitled to his commissions and reasonable attorneys' fees. 2 Perry on Trusts, sec. 910. The case of Brown v. Vinyard, 1 Bailey's Eq., 460, has no application. There, so far from the Court holding and all parties conceding that a necessity existed for the litigation for the benefit of those concerned, the person claiming fees and commissions as executor had undertaken
to hold the estate under a forged will against the administrator.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICE GARY and JONES concur.
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