Rogers v. Ross

4 Johns. Ch. 608, 1820 N.Y. LEXIS 168, 1820 N.Y. Misc. LEXIS 36

Opinion

The Chancellor.

Neither the defendant, nor her testator, were in fault. Her testator was the executor of Alexander Henderson, and the will of A. II. was expressed so ambiguously, as to the disposition of the intermediate rents and profits of the farm devised to William Henderson, that counsel differed as to the true construction and legal operation of the will on that point. It was, therefore, an act of

sound discretion in the executor of A. H., and in the defendant, as his executor, to require the direction of this Court; and the fund in dispute, not his own estate, ought to bear the expense of the suit. This was the principle advanced in the case cited; and it has been frequently held, that costs ought to be charged upon the general assets of a testator, or upon the fund created by his will, if the will be so drawn as to create difficulty, and render a resort to this Court advisable. (3 P. Wms. 303. 3 Bro. 25. 192.) It is, also, the settled doctrine, that executors, and other trustees who have acted fairly, or who have resisted a claim in good faith, merely by way of submission, shall have their costs out of the fund. (1 Vesey, jun. 205. 246.) The costs, therefore, must be paid out of the fund.

Order accordingly.