Wilson v. Clayburgh

74 N.E. 799, 215 Ill. 506

• Court: Illinois Supreme Court
• Decided: June 23, 1905
• Status: Published

Opinion

Mr. Justice Hand

delivered the opinion of the court:

The only question involved upon this appeal is, can a court of chancery, in the exercise of its equitable jurisdiction, allow and tax as cost the solicitor’s fee of the solicitor for a beneficiary "under a trust created by a will, who brings a suit to have the resignation of the trustee named in the will accepted and a new trustee appointed in his place ? That question, we think, must be answered in the negative. It has been repeatedly held in this State that nothing can be allowed and taxed as costs by the clerk or the court but items of cost designated by the statute to be so allowed and taxed. (Constant v. Matteson, 22 Ill. 546; Strawn v. Strawn, 46 id. 412; Eimer v. Eimer, 47 id. 373; Conwell v. McCowan, 53 id. 363; Campbell v. Campbell, 63 id. 502; Roby v. Chicago Title and Trust Co. 194 id. 228; Rieker v. City of Danville, 204 id. 191.) The only exception to this rule in this State is in cases brought by trustees for the construction of wills, where a will is so ambiguous as to make it necessary to go into a court of chancery to obtain a construction thereof, in which class of cases the costs of the litigation must be borne by the estate. Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338; Ingraham v. Ingraham, 169 id. 432; Arnold v. Alden, 173 id. 229.

It is urged with much earnestness that the same reason obtains in this case for the allowance of a solicitor’s fee to complainant’s solicitor to be taxed as costs and paid out of the estate, that exists in the case of a bill filed for the construction of a will which is ambiguous. Such has not been the holding of the courts, (In re Holden, 126 N. Y. 589,) and this court could not so hold without legislating upon the subject. The question here presented has been before this court in partition suits, (Strawn v. Strawn, supra; Eimer v. Eimer, supra; Campbell v. Campbell, supra;) where the litigation often may be as beneficial to the defendant as to the complainant; but the uniform holding has been, in those cases, that the court cannot allow and tax a solicitor’s fee in the absence of a statute authorizing it so to do, and the same conclusion has been reached in foreclosure cases. Conwell v. McCowan, supra; Roby v. Chicago Title and Trust Co. supra.

It is also said the deceased made it necessary for the suit to be commenced and the solicitor employed by reason of the fact that he provided in his will a successor in trust to the original trustee should be appointed “by a court of chancery,” hence the estate should bear all the cost of the proceeding for the appointment of a successor, which would include a solicitor’s fee. That provision made it no more necessary to invoke the aid of a court of chancery to secure the appointment of a new trustee than would have been the case had the will contained no such provision. Equity will never allow a trust to fail for the lack of a trustee, and whenever the office of trustee becomes vacant from any cause whatsoever, a court of chancery will, upon proper application, fill it. West v. Fitz, 109 Ill. 425; French v. Northern Trust Co. 197 id. 30.

The solicitors of appellant have cited and relied upon Wilbur v. Wilbur, 138 Ill. 446, and Hutchinson v. Hutchinson, 152 id. 347, to sustain their contention. Those cases only go to the extent of holding that a court of chancery may allow and cause to be taxed as cost a solicitor’s fee on behalf of a guardian, ad litem, which practice is expressly authorized by statute, (Hurd’s Stat. 1903, chap. 22, sec. 6,) and therefore do not control the decision in the case at bar.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.