MANDERSON’s APPEAL.1
(Supreme Court of Pennsylvania. October 4, 1886.)

TRUSTS—EMPLOYMENT 0F COUNSEL—COMPENSATION OF—DEFAULTING TnusTEE.

It is the duty of a trustee against whom legal proceedings have been insti

tuted to employ counsel, and, as incident thereto, to appropriate so much of

the trust-estate as is necessary to reasonably compensate him for his services;

and even where the trustee absconds, and so loses his right to an allowance

for services and counsel fees, as between the trust-estate and himself, the coun

sel employed by him has a right of action against the eestut que trust, to whose estate the counsel has rendered necessarv and beneficial services.

Appeal of William A. Manderson from the decree of the orphans’ court of Philadelphia county, dismissing his exceptions to the adjudication of the account of the Guarantee Trust & Safe Deposit Company, trustee under the will of William G. Mintzer, deceased.

Alexander Thackara, surviving executor and trustee under the will of William G. Mintzer, deceased, defended certain litigations in which he was summoned as garnishee; income in his hands as trustee attached under proceedings in sequestration, as also under proceedings by guardians of the poor. In all of these proceedings, the litigation of which extended over a period of three years, the trust under which he acted was directly attached, but the litigation resulted in favor of the trust. In this litigation he was represented by the appellant, who never received any compensation for his services or money expended. In September or October, 1883, the said trustee disappeared, and the Guarantee Trust & Safe Deposit Company were appointed in his stead. Upon an examination of the assets of the estate, he was found to be a defaulter to a large amount. On November 24, 1884, the account of the Guarantee Trust Company, trustees, was filed, and, being called for adjudication in the orphans’ court, the claim of appellant for services rendered the trustee in the protection and defense of the trust was presented. Upon the adjudication the adjudicating judge found the value of the services rendered by appellant to be $800, and that they were for the interest of the trust; but refused to allow the claim, upon the grounds—First, that, being a defaulting trustee, he was therefore entitled to no allowance for costs and charges, in which are included counsel fee; second, that the fund before the court not being the result of the services rendered by appellant, and the present accountant having made no contract with him, his remedy was against the person employing him personally; third, that the services not being entitled to compensation out of the principal, and the income being exempt from any debts or engagements of the cestu'i que trust, by the provisions of the will, there is no exception in favor of the testator’s estate or of the trustee; whereupon this appeal was taken.

John G. Johnson, for appellant. .

The defaulting trustee is not making a claim for money paid, but it is made by counsel who has not been paid. The authorities are clear that in such case the counsel is entitled to compensation for his services, where they result to

1Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

the benefit of the estate. Sterett’s Appeal, 2 Pa. 426; In re Bingham’s Estate, 1 Leg. Gaz. 31; Ammon’s Appeal, 31 Pa. St. 311; Andrews v. Tower, 3 Phila. 111; In re Oakford’s Estate, 2 Troub. 85 H. Pr. 651.

John A. Scanlan, for appellee.

The income of a spendthrift trust is not liable for these services. Mint— zer’s Appeal, 100 Pa. St. 151. The trustee was not bound to interpose. S-wanger v. Snyder, 50 Pa. St. 218; Ouemnan’s Appeal, 88 Pa. St. 276. The remedy of appellant is against the trustee who employed him. Mygatt v. Willcosc, 1 Lans. 55; Bowman v. Tallman, 27 How. Pr. 212; Newbaker v. Alricks, 5 Watts, 183. Counsel fees are costs, and costs are never allowed a trustee who commits a breach of trust. In re Swartswalter’s Accounts, 4 g’Vatts, 79; Stehman’s Appeal, 5 Pa. St. 413; Berryhz'll’s Appeal, 35 Pa. St. 45.

STERRETT, J . 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 donors. ’ 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 settlement of his account; but it sometimes happens that trustees are removed, by death or otherwise, without hav‘ ing 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 his opinion the learned judge says, if the trustee 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 account. 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 default-ing trustee, or any one claiming in his right, there would be great force in this position; but there is no reason why the absconding trustee’s sins, either of omis

sion 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 quetrustent, 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.

EJECTMENT—QUESTION 0F FACT—DELIVERY OF DEED—PROVINCE OF JURY.

In an ejectment between A. and B., the chief question was the delivery or non-delivery of a deed for the property, made by C. to D. in 1857. Upon this the evidence was conflicting. The court left it for the jury to say whether there had or had not been delivery. Held, that there was no error in this.

Error to common pleas, Lancaster county.

Ejectment by Elizabeth G. Eshleman against Dr. A. M. Miller, for the undivided half of about one acre of ground in Lancaster county.

John Gyger died intestate, April 10, 1870, leaving as his heirs his daughter, the plaintiff, and a grandson, Abijah D. Gyger, son of Jesse Gyger, deceased. John Gyger obtained title to the premises in 1854. Soon after, he built a brick house thereon. By a deed dated October 29, 1857, he conveyed the land in dispute to Mary Gyger, widow of his deceased son, Jesse, durante viduitate, and, after her marriage or decease, then in trust for his grandson, Abijah D. Gyger. Whether this deed was ever delivered or not was a question upon which there was much conflict of testimony. It was recorded July 16, 1870. By article of agreement made September 20, 1869, between John Gyger and Dr. A. M. Miller, the former agreed to sell the latter the premises in dispute, ' but, before the sale could be consummated, John Gyger died. An attempt was made by his executrix to have specific performance of this agreement decreed by the orphans’ court, but, owing to the conflict of testimony, the master reported that he was unable to decide the case. By deed of March 30, 1871, Abijah D. Gyger and wife conveyed the premises in dispute to the defendants Plaintiff claiming that one-half thereof belonged to her as one of the heirs at law of John Gyger, deceased, brought this ejectment to recover the same. Upon the trial, before LIVlNGSTON, J ., numerous exceptions to the admission and rejection of evidence and to the charge of the court were taken. Verdict and judgment for plaintiff, whereupon defendant took this writ.

North J: Johnson, for plaintiff in error.

The rule adopted by the court, that the deed, to be valid, must have been actually delivered, is not in accordance with the authorities. Gar-none v. Knight, 5 Barn. & C. 692; Scrugham v. Wood, 15 Wend. 545; Souverbye v. Arden, 1 Johns. Ch. 239; Blight v. Schenck, 10 Pa. St. 289; Diehl v. Emig, 65 Pa. St. 320; Rigler v. Cloud, 14 Pa. St. 361. Confessions of a person, made after his interest has ceased, are not evidence. Whart. Ev. § 228; Weidman v. Kohr, 4 Serg. & R. 174; Reed v. Dickey, 1 Watts, 154.

D. G. Eshleman, B. Frank Eshleman, and J. Hay Brown, for defendant in error.

The court did not charge that the deed must be actually delivered. He instructed the jury to take all the facts and circumstances stated in the points in deciding whether or not there was a delivery. Under the facts here, this ruling was correct. 4 Kent, Comm. 454, 456; Critchfield v. Critchfield, 24 Pa. St. 100. The declarations were properly admitted. Padgett v. Lawrence, 10 Paige, 170; Brolaskey v. McCain, 61 Pa. St. 146; St. Clair v. Shale, 9 Pa. St. 252.

GREEN, J. It certainly must be conceded that there was evidence enough in this case to have sustained a verdict either for the plaintiff or the defendant, and that a court trying the cause would scarcely have felt at liberty to set aside the verdict, and grant a new trial, on the theory that any verdict the jury might have rendered was against the weight of the evidence. The chief matter in controversy was the delivery of a deed. Essentially the question was one of fact, and its determination was entirely for the jury. The result depended much upon the credibility of witnesses, which is matter exclusively within the province of the jury. The verdict was against the theory of a delivery of the deed. \Vhile there are some facts which, if believed, tend strongly to prove a delivery, there are others of a highly persuasive character tending strongly to prove there never was a delivery. In such a condition of the testimony it is not for this court to interfere unless there was error in the treatment of the case by the court below. After a careful and patient consideration of the charge, the answers, and the entire testimony, we are unable to discover any error requiring a reversal of the judgment.

We think the charge was a very fair, impartial, and entirely correct presentment of the testimony, and its various aspects. The theories of both sides were stated, and the leading facts claimed by each in support of his theory were fully exhibited, without the slightest expression of opinion by the learned judge on either side.

It is a mistake to say that he told the jury, or even intimated to them, that the deed must actually have' been delivered into the hands Of the grantee by the grantor. On the contrary, he expressly said to them that the question for them to consider was: “Was there ever a delivery of it by John Gyger, the grantor, by acts alone, by words alone, or by both together, to her, or to any one for her?” He had previously defined these methods of delivery, and had said: “ Where an instrument is formally executed and delivered, and there is nothing to qualify the delivery but keeping the deed in the hands of the executing party, or to show that he did not intend it to operate immediately, it is an effectual delivery.” As the defendant admitted that he had received the deed from the grantor shortly before his last sickness, which was several years after the death of the grantee, who was the defendant’s wife, and as the defendant himself contracted with the grantor to buy the property in dispute from him at about the same time, it cannot be questioned that grave doubt arose upon the fact of a previous delivery to Mrs. Miller, upon the undisputed acts and declarations of the defendant himself. But the court gave him the benefit of an instruction to the jury that they might find a delivery in any of the ways which the law recognizes as sufficient to establish that fact. The learned judge nowhere said that it was necessary to find that the grantor had actually placed the deed in his daughter’s hands in order to constitute a good delivery.

Recurring to the several assignments of error, we think, as to the first, that the answer to the pIaintiff’s second point was entirely correct, since the point assumes that there never was a delivery; and upon that assumption the conclusion stated was sound, notwithstanding the declarations of the grantor stated in the point.

The answer to the plaintiff’s fourth point must be taken in connection with what was said on the subject of delivery in the general charge, and, as thus explained. an actual delivery was certainly essential to the defendant’s claim of title. .

The answer to the defendant’s first point was certainly correct. The attempt of the point was to cast the burden of proof of non-delivery of the deed to Mary Gyger upon the plaintiff, who was claiming by title paramount to that deed, and thus relieving the defendant of the burden of proving a fact material to the validity of the title under which he claimed. The answer was that the point was true if the dominion of the deed had passed from the grantor, but not if it remained with the grantor. In the latter case the onus rested with the party claiming under the deed, and this is undoubtedly so.

The defendant’s second point was affirmed except asto acts and declarations of the defendant, and this exception was properly taken.

The facts set out in the defendant’s third point would be consistent with title in Mary Gyger, and the jury were so instructed to consider them, but they would not be conclusive of her title if there never was a delivery; and that was all the court said, and in this there was no error.

The facts stated in the defendant’s fourth point are not all the facts which would be essential to title under the deed in question, and therefore the point could not be affirmed as it stood. They might all exist, and yet it might be true that title had not passed, and that the grantor’s possession of the deed would not be for the grantee’s use.

This disposes of the first six assignments of error.

v.6A.no.9—57