of the parties prevailed and failed to some extent, the costs may be divided or apportioned according to the relative importance of the items in dispute won and lost by the respective parties, and the time and expense spent by each.14 A tender by the defendant of the full amount found to be due may render the complainant liable for costs thereafter accruing, but an offer of less than the complainant was entitled to, made by the defendant after the filing of the bill, is not ground for a division of the costs.15 Where the holder of an invalid tax title refused to accept a tender of more than he was entitled to receive, and made it necessary to prosecute a bill to set aside the tax title, it was held proper to tax the costs against him.16 The complainant must pay or bring into court all that he is in equity bound to pay before he can obtain the relief sought, or the costs up to the time of such payment may be decreed against him.17 Where the defendant offered, before the filing of the bill, all the relief which the complainant obtained under the decree, and such offer was refused, it was held that the entire costs were properly imposed upon the complainant.18 Where the defendant, who has no interest in the subject-matter of the controversy, properly disclaims all right, the bill will be dismissed as to him with costs therein, but if he sets up a claim, and insists upon a declaration of his rights, the dismissal, as to him, will be made without costs.19 As a general rule, no person can have a judgment for costs unless he is a party to the suit;20 and a judgment for costs cannot be rendered against one not a party to the suit.21 The court will not hear a cause merely to decide the question of costs,

14 Bridges v. Sheldon, 7 Fed. 17.

15 Benedict v. Beurmann, 90 Mich. 396, 51 N. W. 461.

16 Gage v. Du Puy, 137 Ill. 652, 24 N. E. 541.

17 Sneed v. Town, 9 Ark. 535.

18 Gallagher v. Witherington, 29 Ala. 420.

19 McKinnon v. McDonald, 57 N. C. 1, 72 Am. Dec. 574. See. also. Catlin v. Harned, 3 Johns. Ch. (N. Y.) 61.

20 Winship v. Conner, 43 N. H. 167.

21 Winship v. Conner, 43 N. H. 167; Wallace v. Espy, 68 Ill. 143.

where the parties have compromised the suit, reserving that question for the decision of the court.2

§ 743. Costs out of the fund.

22

It is held that, where one person institutes legal proceedings for himself and others, and thereby secures the fund for the common benefit of all, an allowance will be made to him for costs and expenses necessarily incurred, including reasonable solicitor's fees.23 But where the interests of the parties are adverse, nothing beyond the legal taxable costs can be allowed by one party as against the other.24 The owner of stock in a corporation who sues for himself and all other shareholders successfully for a wrong done to the corporation is entitled to be reimbursed for his actual and necessary expenses, including attorneys' fees, out of the corporate fund.25

22 Stewart v. Ellice, 2 Paige (N. Y.) 604; Walpole v. Griffin, Wright (Ohio) 95; Gibson v. Cranley, 6 Madd. 365, Roberts v. Roberts, 1 Sim. & S. 39; Eastburn v. Kirk, 2 Johns. Ch. (N. Y.) 317.

28 See Kadish v. Chicago Co-operative Brewing Ass'n, 35 Ill. App. 411; Whitsett v. City Building & Loan Ass'n, 3 Tenn. Ch. 526. See, also, Mason v. Codwise, 6 Johns. Ch. (N. Y.) 297; Rains v. Rainey, 11 Humph. (Tenn.) 261; Ex parte Plitt, 2 Wall. Jr. 453, Fed. Cas. No. 11,228; Stanton v. Hatfield, 1 Keen, 358; Thompson v. Cooper, 2 Colly. 87; Tootal v. Spicer, 4 Sim. 510; Larkins v. Paxton, 2 Mylne & K. 320; Sutton v. Doggett. 3 Beav. 9. An allowance is properly made out of the fund of a fee for the solicitor by whose exertions the fund was recovered, and the amount thereof is within the judicial discretion of the court. Harrison v. Perea, 168 U. S. 311; Trustees v. Greenough, 105 U. S. 527; Fowler v. Equitable Trust Co., 141 U. S. 411; Attorney General v. Brewers' Co., 1 P. Wms. 376; Attorney General v. Old South Society in Boston, 13 Allen (Mass.) 474.

24 State v. Florida Cent. R. Co., 16 Fla. 703; Ryckman v. Parkins, 5 Paige (N. Y.) 545. In suits to establish or administer a charity, if the fund be of adequate amount, and the parties have conducted themselves with propriety, the taxation of costs, "as between solicitor and client," is extended to the costs of all; and a privilege of a like character is conferred on the complainant in a creditors' suit, if the estate to be administered prove insolvent, for, in this case, the creditors whom he represents are entitled to the whole fund. But if there be any surplus, so that other persons become interested, he can claim only his costs as between party and party. Adams, Eq. 391; Stanton v. Hatfield, 1 Keen, 358.

25 Grant v. Lookout Mountain Co., 93 Tenn. 691, 28 S. W. 90, 27 L. R.

§ 744. Costs out of an estate.

Whenever an estate, whether real or personal, is the subject of litigation, the court will, in general, order the costs of the suit, or those of some of the parties to it, to be defrayed out of the fund or estate.26 As a general rule, a person suing in autre droit is not responsible for costs. An executor or administrator complainant will not be ordered to pay costs unless the suit be clearly groundless or vexatious.27 It is a rule that trustees, agents, receivers, and personal representatives, accounting fairly and paying their money into court, are entitled to their costs out of the estate as a matter of course.28 The rule is not con

A. 98; Kernaghan v. Williams, L. R. 6 Eq. 228; 2 Spelling, Corp. § 643; Cook, Corp. § 748. For reimbursement out of a fund, see Von Schmidt v. Huntington, 1 Cal. 55; McCoy v. Appleby Mfg. Co., 1 Ill. App. 78; Coddington v. Idell, 29 N. J. Eq. 504; Hand v. Savannah & C. R. Co., 21 S. C. 162. But costs of defending a suit brought by an administra tor against one who has wrongfully converted assets of the estate, and persistently refused to pay them, must be charged against the defendant personally, and cannot be allowed out of the fund. Harrison v. Perea, 168 U. S. 311. "The underlying principle in all these cases where one has been allowed compensation out of a common fund belonging to others for expenses incurred and services rendered in behalf of the common interest is the principle of representation or agency. Where such compensation has been allowed, the party claiming has been in some way the recognized and authoritative representative of the whole, and therefore authorized to contract for the whole. Thus it

is that, in the case of executors, administrators, and other trustees, and in creditors' bills, and suits of that nature, where the representative of a class is the principal and first actor, either as plaintiff or defendant, the class being so numerous as not to be conveniently made parties individually, the law superinduces a contract on the part of all having a common interest, that the common property shall be chargeable with the reasonable contracts as to fees, expenses, etc., of the representative." Hand v. Savannah & C. R. Co., 21 S. C. 162.

26 2 Barbour, Ch. Pr. 328.

27 Getman's Ex'rs v. Beardsley, 2 Johns. Ch. (N. Y.) 274; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 520; Gifford v. Thorn, 9 N. J. Eq. 702. Where such personal representative resists a claim and litigates from a conviction of duty, the costs will be paid out of the assets of the estate. Moses v. Murgatroyd, 1 Johns. Ch. (N. Y.) 473.

28 2 Barbour, Ch. Pr. 328; Attorney General v. City of London, 1 Ves. Jr. 243; Rashleigh v. Master, 1 Ves. Jr. 205; Knatchbull v. Fearnhead,

fined to cases in which they are brought before the court as defendants. Thus, a trustee is entitled to his costs, whether he comes before the court as complainant or defendant, unless the act required to be done leads to no responsibility, or his motive is obviously vexatious.29 A trustee, fairly instituting a suit for the direction of the court with regard to the trust, will not only be entitled to his own costs, but any person made a party to the suit for his protection will also be allowed his costs from the fund.80 Trustees or other persons standing in that character, however, will not be permitted unnecessarily to burden the fund by costs which they might have avoided.31 If they attempt to defeat the claims of their cestui que trust by setting up an improper defense, or by stating the trust to be different from what it really is, costs will be denied them.32 Besides withholding from a trustee his costs, the court will sometimes go further, and compel him to pay the costs out of his own pocket. If any particular instance of misconduct, or a general dereliction of duty in the fiduciary, is the immediate cause of the suit being instituted, he, on the charge being substantiated against him, must pay the costs of the proceedings his own improper misbehavior has occasioned.33 When a suit is instituted, either by creditors or legatees, for a general administration of assets, so that the whole estate of the deceased must necessarily come under the direction of the court, the costs of the

3 Mylne & C. 122; Knox v. Picket, 4 Desaus. (S. C.) 199; Dunscomb v. Dunscomb's Ex'rs, 1 Johns. Ch. (N. Y.) 508; Hosack v. Rogers, 9 Paige (N. Y.) 461; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153.

29 2 Barbour, Ch. Pr. 329; Curteis v. Candler, 6 Madd. 123; Hosack v. Rogers, 9 Paige (N. Y.) 461.

80 2 Barbour, Ch. Pr. 329; Hicks v. Wrench, 6 Madd. 93; Henley v. Philips, 2 Atk. 48; Taylor v. Glanville, 3 Madd. 176.

31 2 Barbour, Ch. Pr. 330; Martin v. Persse, 1 Moll. 146; Blount v. Burrow, 3 Brown Ch. 90. Trustees will be deprived of costs, if they claim more than they are entitled to. Attorney General v. Brewers' Co., 1 P. Wms. 376.

32 2 Barbour, Ch. Pr. 330; Loyd v. Spillet, 3 P. Wms. 346; Ball v. Montgomery, 2 Ves. Jr. 191.

33 2 Barbour, Ch. Pr. 330.

34

personal representatives are always provided for; and even where there is a deficiency of assets to pay the whole of the testator's debts, they constitute the first charge upon the fund arising from the personal estate.3 Where there is no deficiency in the fund realized by the suit to answer all the claims upon it, the general rule is that, whenever it is necessary to come into court to establish a demand upon the property of persons deceased, the costs of s h proceedings must be borne out of the assets.85 Where a suit was instituted by a legatee, by order of the court, to ascertain whether his legacy had been adeemed, the costs of all the parties were paid out of the fund, although the bill was dismissed.86 Where a legacy, either general or specific, is to be paid out of the testator's estate, and any doubt or ambiguity arises under the will which renders an application to the court necessary, the costs occasioned by such application are to be paid out of the residuary estate.37 The residuary estate is the general fund for paying all the costs incurred in the course of administering the estate, and is applicable before the particular fund which has occasioned the litigation,

34 2 Barbour, Ch. Pr. 331; Bennett v. Going, 1 Moll. 529; Young v. Everest, 1 Russ. & M. 426. See, for costs in suits for administration of assets, 2 Barbour, Ch. Pr. 331; Hare v. Rose, 2 Ves. Sr. 558; Loomes v. Stotherd, 1 Sim. & S. 458; Hamilton v. Hamilton, 1 Moll. 535; Chissum v. Dewes, 5 Russ. 29; Mason v. Codwise, 6 Johns. Ch. (N. Y.) 183; Barker v. Wardle, 2 Mylne & K. 818.

35 2 Barbour, Ch. Pr. 331; Hampson v. Brandwood, 1 Madd. 381; Gardner v. Parker, 3 Madd. 184; Sharples v. Sharples, 13 Price, 745. For costs on proceedings to construe an ambiguous will, see 2 Barbour, Ch. Pr. 332; King v. Strong, 9 Paige (N. Y.) 94; Smith v. Smith, 4 Paige (N. Y.) 271; Rogers v. Ross, 4 Johns. Ch. (N. Y.) 608; Studholme v. Hodgson, 3 P. Wms. 300; Nourse v. Finch, 1 Ves. Jr. 343; Leister v. Sheringham, 1 Newland, Ch. Pr. 397.

36 2 Barbour, Ch. Pr. 334; Ashe v. Berry, 1 Beat. 255.

37 2 Barbour, Ch. Pr. 334; Studholme v. Hodgson, 3 P. Wms. 303; Jolliffe v. East, 3 Brown Ch. 27; Baugh v. Reed, 3 Brown Ch. 192; Attorney General v. Hurst, 2 Cox, 365; Barrington v. Tristram, 6 Ves. 345; Pearson v. Pearson, 1 Schoales & L. 12; Nisbett v. Murray, 5 Ves. 158; Eyre v. Marsden, 4 Mylne & C. 231; Ripley v. Moysey, 1 Keen, 578; Smith v. Smith, 4 Paige (N. Y.) 271; King v. Strong, 9 Paige (N. Y.) 94.