Manderson's Appeal

Mr. Justice Sterrett

delivered the opinion of the court,

It appears from the finding of the learned auditing judge that the professional services for which compensation is claimed, were rendered by appellant, at the instance of the former trustee, in the due administration of the trust estate, and for the manifest benefit thereof. If the legal proceedings against the estate had not been successfully resisted, a considerable portion of the trust fund would doubtless have been permanently diverted, and improperly appropriated to purposes never contemplated by the donor. In view of the effort made to defeat, in part at least, the trust he was chosen to administer, it was clearly the duty of the trustee to employ counsel and, as incident thereto, to appropriate so much of the trust estate as was necessary to reasonably compensate him for his services. It was the trust estate and not the trustee individually, that was benefited by appellant’s well directed and successful services; and hence it is both reasonable and just that they should be paid out of the trust fund. As a necessary part of the expenses of properly administering the trust, the services in question should be compensated by that branch of the trust estate for the special benefit of which they were rendered.

Ordinarily, counsel fees and other expenses necessarily incurred in the administration of trust estates, are advanced by the trustee, who afterwards takes credit therefor in the settlement of his account; but, it sometimes happens that trustees are removed by death or otherwise, without having first settled all claims for expenses of administration. There may be unsettled claims of mechanics for necessary repairs of the trust property, or, as in -this case, claims for professional services necessary for the protection of the trust itself. It surely cannot be successfully contended that meritorious creditors of the trust, thus circumstanced, are without redress. In Lis opinion, the learned judge says, if thetrust.ee had “filed his account and asked for allowance for counsel fees out of the money so in his hands, such allowance might properly have been made ; but he did not so accouut; he is a defaulter, and he is therefore entitled to no allowance for costs and charges in which are included counsel fees.” In a controversy between the trust estate and the defaulting trustee, or any one claiming in Ins right, there would be great force in this position ; but, there is no reason why the absconding trustee’s sins, either of omission or commission, should be visited on a creditor of any class, who, at the instance of the trustee having authority to employ him, has rendered necessary and beneficial services to the trust, and has not yet been compensated therefor.

It also appears in the findings of fact, that the services in question were reasonably worth $800, and that there is in the hands of the present trustee, income of the trust, payable to George W. Mintzer, one of the cestuis que trustent who was specially benefited by the services, more than sufficient to pay the amount so found. In view of these and other facts found by the learned auditing judge, we think the sum named with interest from date of adjudication should be allowed out of that portion of the income payable to said cestui que trust.

Decree reversed at costs of appellees, and record remitted with instructions to allow appellant’s claim to the extent of $800, with interest from date of adjudication, out of income payable according to terms of the trust, to George W. Mintzer.