Sherman v. Leman

Mr. Chief Justice

Scholfibld delivered the opinion of the Court:

In general, the expenses of administering a trust are a lien in favor of the trustee on the estate in his hands, and he will' not be compelled to part with his control of such estate until those expenses are paid. (Johnson v. Leman et al. 131 Ill. 609.) But can it be said that the expenses and costs of prose-, cuting the appeals from .the circuit court to the Appellate Court, and from that court to this court, are expenses of administering the estate ? Leman’s appointment was strictly pursuant to the letter of the will of Sherman, and so the expenses and costs of determining its validity were rendered necessary by the language there employed by him, and they are therefore properly a charge upon the corpus of his estate. (Missionary Society et al. v. Mead et al. 131 Ill. 338; Barrington v. Tristram, 6 Ves. 349; Rogers v. Ross, 4 Johns. Ch. 608; Bradford v. Boudinot, 3 Wash. C. C. 122; Ammen’s Appeal, 31 Pa. St. 311; Sawyer v. Baldwin, 20 Pick. 388.) But their validity was determined by the decree of the circuit court, and that court had plenary jurisdiction over every question involved in the construction of the will and the administering of the estate. Even if Leman had been lawfully appointed trustee, that court had entire control and supervision of all his acts, and might, at any time, for cause, remove him and appoint another in his stead. Perry on Trusts, sec. 275 ; Hill on Trustees, (4th Am. ed.) 298, *190, 191. And the orders and decrees of the circuit court in respect of the removal and appointment of a trustee and the administering of the trust are ample protection to all persons acting under them. Perry on Trusts, sec. 924; Hill on Trustees, (4th Am. ed.) 861, 862, *554. Sherman neither personally selected Leman to be trustee nor devolved duties upon his trustee of a personal character; nor was Leman' bound, in the first instance, to act as trustee; nor, after acceptance, was he compelled to continue as trustee, for the will expressly recognizes his right to resign. See Hill on Trustees,/ (4th Am. ed.) 862. In no view, therefore, can it be said that the interests of the estate required the prosecution of these appeals. Leman undoubtedly had the right to appeal, but the exercise of that right involved considerations affecting him personally, only; and not such as materially affected the trust estate, and he exercised it as do all persons litigating for their own interests—at his peril. Perry on Trusts, sec. 928.

Our conclusion follows, that the court below erred in decreeing that Leman be allowed to take credit for costs paid on appeal from the circuit court to the Appellate Court and from the Appellate Court to this court, and for the amount paid his attorney for services upon those appeals.

The objection that Leman was improperly allowed costs for witnesses before the master in chancery, we do not think tenable. It was within the discretion of the chancellor to allow those costs, in view of the issues pending when the reference was made to the master.

The judgment of the Appellate Court and the decree of the circuit court are reversed, and the cause is remanded to the circuit court, with directions to that court to modify its decree and disallow the amounts paid by Leman for costs and attor-, ney’s fees on the appeals from the circuit court to the Appel-j late Court and from the Appellate Court to this court, but in no otherwise to change it.

Judgment reversed.