Opinion
02-06-1909
LARKIN v. WIKOFF.
On application to settle decree.
For former opinion, see 75 N. J. Eq. 462, 72 Atl. 98. See, also, 78 Atl. 1134.
WALKER, V. C. This was a case concerning a trust arising under a deed. The opinion concluded thus, supra: "As this proceeding is in good faith, and requires a construction of the trust instrument under which the properly is held, it would appear to be a case for the allowance of costs and counsel fees to both parties under the authority of Attorney General v. Moore's Executors, 19 N. J. Eq. 503, 519. I will hear counsel further on this question at any time before final decree."
This question of the allowance of costs and counsel fees was not raised or argued, and now counsel for the defendant objects to their allowance on the ground that they are properly payable out of the estate only in case of contests under wills, but are not allowed in the case of contests under deeds. The authority upon which I predicated the allowance is that of Attorney General v. Moore's Executors, supra, in which case the Court of Errors and Appeals (at page 519, said: "If reasonable grounds exist for coming into the court to obtain the construction of the instrument creating the trust, the practice is to allow the costs and expenses, as it respects all the parties, and as between attorney and client, out of the trust funds."
Although the court in Attorney General v. Moore's Executors was dealing with a trust created by will, nevertheless the award of costs and counsel fees to all parties was said to be the practice in cases where "reasonable grounds exist for coming into the court to obtain the construction of the instrument creating the trust." Now, if the court meant that that practice obtained only with reference to contests arising under wills, I believe it would have so stated. But the observation that the rule obtains in cases where the "instrument creating the trust" has to be construed strikes me as a deliberate decision to the effect that the rule is not confined to will cases, as a will is only one instrument under which a trust may be created, and a deed is certainly another one. I am not prepared to believe that the Court of Errors and Appeals meant to confine allowances in cases of the kind under consideration to trusts arising under wills, because, if it did, how easy it would have been to use the proper and apt expression, "will," creating the trust, instead of "instrument," a term which comprehends "deed" as well as "will." In Bouv. Diet. (Rawle's revision) 1064, "Instrument" is thus defined: "A document or writing which gives formal expression to a legal act or agreement. * * * It includes bills, bonds, conveyances, leases, mortgages, promissory notes, and wills."
I have not overlooked the fact that the Court of Errors and Appeals, in Attorney General v. Moore's Executors, cited as authority for allowances to both sides 1 Redf. Wills, 493, and 3 Dan. Ch. Pr. 1554 (the paragraph number must be a mistake, and paragraph 1427, which concerns costs in will cases, must be intended). Nor have I overlooked the fact that the decision, so far as it extends to instruments other than wills, is probably dictum, as it was a will case which was under consideration. My interpretation of the court's decision, and consequently my opinion, is that the word used, namely "instrument," was used in its usual and ordinary sense.
There is, in my judgment, a peculiar equity in this case entitling the complainants to costs out of the trust property. This was not a suit brought immediately upon a trust being created, to resolve doubts and ambiguities upon the face of the trust instrument, in order that the trust might be settled and applied, but was a case in which the trust had been executed for a period of more than 30 years, and then the trustees, under power conferred upon them, determined that conditions subsequent had happened which rendered the trust property no longer available, or at least no longer required, for the purposes of the original trust, and thereupon determined to sell such of the trust property as consisted of land and hold the proceeds, together with certain moneys donated, upon a certain other trust, of which the complainants were not the beneficiaries. To say that in such a case the original cestuis que trust must defend at the peril of costs, although they have reasonable ground for defending, seems to me to be untenable. At least I think that costs in such a case may, in the discretion of the court, be awarded out of the fund.
I adhere to my original view, and will allow costs to the complainants and a counsel fee of $350, payable out of the trust estate. Defendants' counsel does not ask for an allowance in the decree.