§ 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.2 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.30 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.83 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.

30 2 Barbour, Ch. Pr. 329; Hicks v. Wrench, 6 Madd. 93; Henley v. Philips, 2 Atk. 48; Taylor v. Glanville, 3 Madd. 176.

81 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.

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.34 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 sih 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.

which can only be applied in the event of the general or residuary estate proving deficient.38 In the applications of this rule, no distinction exists between cases in which the residue is disposed of and where it is not.39 Where the act required to be done by the trustee leads to no responsibility, or his motive is obviously vexatious, he will not be allowed his costs.40 A person standing in the situation of a trustee, and occasioning a suit by his neglect or misconduct, is not entitled to costs out of the estate.41 The same rule obtains where, after having taken upon himself the trust, he refuses to act, and thereby renders a suit for the appointment of a new trustee necessary.12 An executor committing a fraud, or improperly retaining money in his hands, even though the testator has directed that his executors be reimbursed any expenses they may incur out of the property, will not be allowed his costs.43 To be disentitled to costs, he must be guilty of some impropriety of conduct. The mere circumstance of his being indebted to the estate will be insufficient, even though he may be made to pay interest on the balance. Where an executor who is indebted to the estate has

44

88 2 Barbour, Ch. Pr. 335; Jolliffe v. East, 3 Brown Ch. 25; Nisbett v. Murray, 5 Ves. 158.

89 2 Barbour, Ch. Pr. 335; Eyre v. Marsden, 4 Mylne & C. 244; Nisbett v. Murray, 5 Ves. 158; Howse v. Chapman, 4 Ves. 542; Barton v. Cooke, 5 Ves. 461. If the devisee of real estate charged with the payment of a legacy refuses to pay the same, the costs of the legatee's suit to recover it will be a charge upon the real estate. 2 Barbour, Ch. Pr. 334; Birdsall v. Hewlett, 1 Paige (N. Y.) 32. The rule will also prevail where property intended to be disposed of has, in the result, been declared undisposed of. There the costs will not be thrown upon the property so declared to be undisposed of, but, as in other cases, upon the general estate. 2 Barbour, Ch. Pr. 335; Howse v. Chapman, 4 Ves. 542; Roberts v. Walker, 1 Russ. & M. 752; Skrymsher v. Northcote, 1 Swanst. 571.

40 2 Barbour, Ch. Pr. 329; Knight v. Martin, 1 Russ. & M. 70; Ellis v. Ellis, 1 Russ. 368.

41 2 Barbour, Ch. Pr. 329; O'Callaghan v. Cooper, 5 Ves. 117.

422 Barbour, Ch. Pr. 329; Howard v. Rhodes, 1 Keen, 581.

48 2 Barbour, Ch. Pr. 329; Hide v. Haywood, 2 Atk. 126; Dawson v. Parrot, 3 Brown Ch. 236.

44 2 Barbour, Ch. Pr. 330; Parrot v. Treby, Finch, Prec. Ch. 254.

a right to ask the aid and protection of the court in paying over the money due by him, he will be entitled to his costs out of the fund. So, if the executor, who is a creditor of the estate, had a right of preference over other creditors, and was compelled to come into chancery to obtain such preference, his costs will be paid out of the fund.45

$ 745. How costs awarded.

Costs are to be awarded as a part of the decree, or they cannot be recovered, although they may be, and generally are, taxed after the decree.46 The amount of costs payable in a suit, whether given out of a fund, or payable by a party, is ascertained by taxation, which, if conducted by the strict rule of the court, is termed a taxation "as between party and party," which are the ordinary costs allowed by the court; but there is in some cases a more liberal allowance, called costs "as between solicitor and client," which are the costs allowed to parties filling those characters.47 In suits of a litigious class, the taxation is always "as between party and party," but in those of a protective or administrative kind, its adoption, though general, is subject to exceptions. The suits in which an exception is made are those for performance of trusts and administration of assets, in which the trustee or personal representative has always his costs as between solicitor and client, and, if payments have been made by him not coming strictly under the name of costs, he may obtain them also by a direction for "charges and expenses, not strictly costs in the cause."48

45 2 Barbour, Ch. Pr. 329; Decker v. Miller, 2 Paige (N. Y.) 149. 46 Coburn v. Schroeder, 8 Fed. 521.

47 2 Barbour, Ch. Pr. 336; Adams, Eq. 391.

48 Adams, Eq. 391; 2 Smith, Ch. Pr. 638. For costs as between so'licitor and client, see 2 Barbour, Ch. Pr. 337, 338; 2 Smith, Ch. Pr. 636; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1434; Edenborough v. Archbishop of Canterbury, 2 Russ. 93; Mohun v. Mohun, 1 Swanst. 201; Norway v. Norway, 2 Mylne & K. 278; Turner v. Turner, cited in 2 Russ. & M. 687; Tootal v. Spicer, 4 Sim. 510; Larkins v. Paxton, 2 Mylne & K. 320; Brodie v. Bolton, 3 Mylne & K. 168; Barker v. Wardle, 2 Mylne & K. 818; Attorney General v. Haberdashers' Co., 4 Brown, Ch. 178; Currie v. Pye,