Williams v. Bond , 120 Va. 678 ( 1917 )

Kelly, J.,

after making the foregoing statement, delivered the opinion of the court.

The first question confronting us arises upon the contention. of the appellees that the appellant’s bill should have been dismissed on demurrer, and that, therefore, he has no standing whatever in this court. Treating the demurrer as having been overruled by implication, we are of opinion that the bill contained matter sufficient to warrant the court in entertaining the cause. The stock was in the possession of John G. Williams at the time of his death, and was held by him upon a trust which vested in him no discretion as to the time or manner of its disposition. This being true, Lewis C. Williams, under the provisions of section 3419 of the Code, was charged with the duty of “executing the trust or so much thereof as remained unexecuted.” There was a wide difference of opinion between him and the owners of the stock as to what were the rights of his own testator in the matter of compensation.; and the facts as developed led the circuit court, properly as we think, to sustain in a limited measure the view for which he contended. The subject of the suit was in the nature of a final accounting and settlement upon a trust fund, involving disputed claims, and the complainant followed a recognized and approved practice in seeking the aid and advice of a court of equity.

The next principal question is whether John G. Williams was entitled, as trustee, to any compensation in addition to the $500 provided for in the will as compensation for his services as executor, and, if so, how much. The circuit court held that he was entitled to such additional compensation, and limited the amount to the commission previously collected on that account by Mr. Williams, or his estate, plus 5% on the dividends which accrued and were paid on the stock during the trust period of ten years and from which no trustee’s commissions were deducted. This, in our view of the case, was correct.

When a testator fixes the compensation for an executor or trustee under his will, and the executor or trustee named' therein accepts the appointment, he is entitled to as much and is limited to as little, as the testator has fixed. In cases where the language of the testator is susceptible of more than one construction, the question becomes one of interpretation which the courts must settle by ascertaining the probable intention and understanding of the parties. Where no compensation at all is named in the will, the rule is that the allowance shall be reasonable, being usually 5% on receipts, subject to increase or reduction of this rate under peculiar circumstances. These propositions are not controverted and are well settled. (Code, sec. 2695; Darling v. Cumming, 111 Va. 637, 69 S. E. 940; Allen v. Virginia Trust Co., 116 Va. 319, 82 S. E. 104, 11 Am. & Eng. Ency. L., p. 1304-5.) Applying them to the instant case, there is room for the contention that the testator intended the sum of $500 to cover all the services of Mr. Williams imposed upon him by the will, but we cannot say that this contention is clearly correct, even upon the face of the will and uninfluenced by the interpretation which Mr. Williams placed upon it. This interpretation by him is entitled to no small consideration. He is shown to have been a lawyer of experience and ability, and a man of high character. He was the trusted friend and adviser of the testator, and prepared the will himself. It does not seem improper in these circumstances, and in the absence of any indication to the contrary, to assume that Mr. Williams correctly construed the will when he charged, as trustee, compensation in addition to what was allowed him as executor, and that in doing so he fixed a reasonable sum. It seems to us just and right, upon the face of the record before us, to attribute to him a correct understanding of the purpose of the testator and a faithful compliance therewith. It was clearly his idea that he was entitled to a commission upon the corpus of the fund represented by the bank stock, but not as much as five per cent. He therefore collected the much smaller sum of $462.60. It was also clearly his idea that upon the smaller amounts of the semi-annual dividends he should receive a commission of five per cent, straight, and this he collected upon most of them. All this seems fair and reasonable, and not at all out of accord with the probable intention of the testator as indicated by the terms of his will. In other, words, what would appear to be the correct interpretation of the will has been put into practical effect by the man whom the testator trusted with its preparation and execution.

We cannot agree, therefore, either with the contention of the appellant that Mr. Williams proceeded upon an “erroneous and mistaken view of his rights,” and charged too little, or, on the other hand, with the appellees’ contention that lie was entitled to no compensation at all as trustee; but we are of opinion, as the circuit court evidently was, that the intention of the testator will probably be carried out and that substantial justice will be done by adopting the view upon which Mr. Williams undoubtedly acted.

We have not overlooked the claim of the appellant that there should be a further allowance based upon the increased value of the stock as of the end of the ten year period covered by the trust, but we do not think there is any substantial foundation upon which to rest such a claim. It is true, as urged by appellant, that Mr. Williams acted as counsel and as president of the bank at a small salary, but he was acting along with the other officers of the bank for the benefit of other stockholders, including himself, besides the Bond estate and there is every reason to suppose that he was, as far as he desired, master of the situation and received a salary satisfactory to himself. His services as president and attorney were chargeable to the bank as a whole, and not to a part of the stock, and he doubtless fully realized and acted upon this principle.

There is one respect, however, in which we think the decree of the lower court should be amended. The trusteeship having regularly devolved upon the complainant, and this suit having been brought in good faith and upon reasonable occasion, the court should have awarded the complainant his costs, and a reasonable allowance as an attorney’s fee. (Cochran v. Richmond &c. Co., 91 Va. 339, 341, 21 S. E. 664; Berkeley & Harrison v. Green, 102 Va. 378, 381, 46 S. E. 387 ; Wilson v. Langhorne, 105 Va. 64, 68, 52 S. E. 841.) Wé are not unmindful that it is somewhat unusual for .this court to modify a decree in respect to. costs, and allowances in the nature of costs, while affirming it in all other particulars. (Dillard v. Dillard, 77 Va. 820; Goodloe v. Woods, 115 Va. 540, 551, 80 S. E. 108). As Judge Staples said in Wimbish, Assignee, v. Blanks, Assignee, 76 Va. 365, 369, “when this court has determined that the decree of the lower court is right upon the merits, it is not much inclined to interfere with the decision with respect to the costs, unless in a case of palpable error.” The present case, however, appears to us to fall within the exception expressly recognized by the opinion in the Wimbish Case, and the other cases cited.

We deem it unnecessary, under the circumstances of this case, to remand it for a reference upon the amount to be allowed as counsel fees.- The amount, so far as it is to be paid from the trust fund, should not be large. There was reason for the suit, but not, as we think, for the demand over which the greater part of the controversy was waged.

The decree complained of will be amended by directing that the appellant recover of the appellees his costs in the lower court, that he be allowed the sum of $150 as an attorney’s fee, and that the bank stock shall not be delivered by him to the appellees until they shall have been paid Mm, in addition to the commissions they are required by the decree to pay him, the costs and allowance herein awarded him; and, as thus amended, the decree will be affirmed.

We are unable to hold, however, that he is the party substantially prevailing upon the appeal, and therefore, under the mandatory terms of the statute, Code, section 3548, the costs in this court must be awarded to the appellees.

Amended and affirmed.