Trustees of Home for Poor Catholic Men v. Coleman

OPINION OF THE COURT BY JlTDGE PAYNTER. The will of John D. O’Leary was probated May 19, 1893, by which he devised a large estate. O. J. Amiss was nominated and qualified as executor of the will. He instituted a suit September 25, 1893, in the chancery court for the settlement of the estate. The appellant, Ooleman, and one Hays, on May 18, 1894, appealed from the order probating the will, and on their motion the appeal was dismissed J une 1, 1896. The commissioner’s report was filed October 30,1896, The trustees of the Home for Poor Catholic Men [550] were the residuary legatees under O’Leary’s will, and on November 20, 1896, the executor was ordered to pay the residuum to them. This action by the appellant, Coleman, was filed April 12, 1900. The appellant, Coleman, is an heir at law of the testator. By the petition he attacked the provisions of the will, and sought to have them set aside, and have the part of, the estate thus attempted to be devised remain as undevised estate. The bequests upon which attack is made are shown by the petition as follows: Paragraph No. 2 attacks the bequest to the Rev. James M Hays for masses; paragraph No. 3 is an attack upon the bequest of $1,000 for masses, to be paid to Bishop McCloskey; paragraph No. 4 is an attack upon a bequest of $3,000 to Bishop Mc-Closkey in trust for the parish poor schools of Louisville; paragraph No. 5 is an attack upon a bequest of $3,000 to the bishop of Cork, Ireland, for general charity in his discretion; paragraph No. 6 is an attack upon the residuary devise tó establish a “Home for Poor Catholic Men;” paragraph No. 7 is an attack upon a devise of- land to the Jesuit order. The court below held that the various provisions of the will to' which we have alluded were valid. An appeal was prosecuted to this court which delivered an opinion sustaining the various devises, except the bequest to the bishop of Cork, and the devis'e of the land to the Jesuit order. On the return of the case, upon the motion of the appellant he was allowed one-half of his costs and $1,500 as attorney fees for prosecuting the action/ and the trustees of the Home for Poor Catholic Men were ordered to pay them. The trustees have appealed from that order. The trustees of the Home for Poor Catholic Men [551] llave no interest whatever in the controversy between the beneficiaries of other devises and bequests to which we have referred, because if they had all been declared invalid, the sums bequeathed and property devised would not have been part of the residuum. Under section 4843, Ky. Stats. 1903, the property thus attempted to be disposed of would have become a part of the estate of that testator for distribution 'among his heirs. The bequests had been paid to the various persons named in the will, and the Home for Poor Catholic Men had been established for several years before this action was instituted. The appellant is presumed to and did know that the executor, Amiss, was proceeding to perform the duties imposed on him by the will. While plaintiff claims that the action was for the construction of the will, it was in effect an action to recover the various amounts we have mentioned, and the property we have described. Another reason why it has the characteristics of an action to recover property is that the various bequests had been paid to the beneficiaries and the property had been delivered to-the persons to whom it had been devised. It seems to us that it would be most inequitable to compel the trustees to pay the appellant’s attorney fees and part of his costs to recover property in which they had not the slightest interest, and in no event under the law could it go to them. Had the appellant, Coleman, succeeded in invalidating the devise to the trustees of the Home for Poor Catholic Men, the utter destruction of the charity would have been accomplished. It seems to ns that it would be most inequitable and unjust to compel the trustees of the Home for Poor Catholic Men to pay appellant’s attorney fees and part of his costs in his effort to destroy the charity and to take [552] the property. Section 889, Ky. Stats. 1903, relates to costs in various kinds of actions; it reads as follows: “The party succeeding in any ordinary action, on the merits or otherwise, shall recover his costs, unless differently provided in this chapter; if the plaintiff shall succeed against part of the defendants, and not against others, he shall recover his costs from the former, and the latter shall recover their costs against the plaintiff. In actions in equity, the party succeeding on the merits or otherwise shall recover his costs, except against nominal defendants; hut when the plaintiff succeeds against. a part of the defendants, he shall recover his costs against such only. Defendants who are necessary nominal parties, and against whom the complainant does not succeed, shall not recover their costs ; hut 'each party shall he decreed to pay his own costs-. Defendants who are not necessary parties shall recover their costs, but in actions between, parcener's, tenants in common, joint tenants, and for settling the distribution and division of deceased person’s estates,- and. to settle partnerships, and to settle or enforce trusts, courts shall have a judicial discretion in regard to costs.” In construing this statute, and determining how the costs and attorney’s fees should be paid, this court has never given it any construction which would sustain the claim of the appellant. On the contrary, the rule enunciated in them denies hisi right to recover. The question as to attorney fees and costs have been passed upon by this court in the following eases: Thirlwell’s Adm’r v. Campbell, 11 Bush, 164; Urey’s Adm’r v. Urey’s Ex’r, 86 Ky. 366, 9 Ky. Law Rep. 596, 5 S. W. 859; Taylor v. Minor, 90 Ky. 549, 12 Ky. Law Rep. 479, 14 S. W. 544; Fristoe v. Gillen, 80 S. W. 823, 26 Ky. Law Rep. 149; Abert v. Taylor, [553] etc., 37 S. W. 676, 18 Ky. Law Rep, 615; Bailey’s Adm’r v. Barclay, 60 S. W. 377, 22 Ky. Law Rep. 1246. It is true that the court allowed counsel for fees to the trustees -in Spalding v. St. Joseph Industrial School, 107 Ky. 382, 21 Ky. Law Rep. 1107, 54 S. W. 200, but that expense was incurred in defense of the trust fund and to carry out the wishes of the testator. In the consideration of this question we do not desire to follow counsel in- an effort to ascertain the English rule in regard to the allowance of attorney fees and costs in charity cases. Under the statute of this State regulating the allowance of costs and attorney fees it is not proper for the court to make a successful litigant, though it be trustee of a charity, pay the attorney fees and costs of a plaintiff who was endeavoring to destroy the charity (not to establish it) by an action to recover the corpus of the trust fund and appropriate it to his use. There is not the slightest evidence that the trustees lack in capacity to manage the trust or that there has been any abuse of the trust; hence no occasion for the interference of the court. Attorney General-v. Wallace’s Devisees, 7 B. Mon. 621. The evidence shows that Coleman never even asked the trustees for the privilege of exercising any visitorial rights he may have; therefore there could not have been any refusal to permit him to exercise them. He had not spoken to the trustees since the death of the testator. The power- and discretion was vested in the trustees to locate and manage the home. The manner of acquiring and transmission of the title to the property does not in the least degree reflect on the judgment or integrity of the trustees. The record shows that they have acted in the utmost good faith in the acquisition and management of the home.