The evidence shows that November 16, 1880, the defendant, at the request of Mrs. Albert, paid $1,000 for the purchase of a judgment against her husband, which transaction resulted in material benefit to her and her family. The ground on which the respondents resist the allowance of this item is that the interest of Mrs. Albert vested in her at the death of her father in November, 1861, when she was a married woman, and, it being before the enactment of the married woman's statute, it did not become her separate estate, and therefore in 1880, when she requested the defendant to advance this money to save her home, she could not by contract bind her property. We need not discuss the married woman's act, or the power of Mrs. Albert to bind her property by contract. It is sufficient for the present purpose to say that this is a suit in equity in which the heirs of Mrs. Albert are asking a court of conscience to compel the defendant to render unto them what is right and just, and, if they ask equity, they must show a disposition to do equity themselves. Besides, the authority to advance this money to protect one of the testator's daughters from what the trustee though was a pending danger is to be found in the large discretionary power given the trustee by the will. Defendant is entitled to credit for that item.
The court refused to allow the trustee any sum for payment of his attorneys in this suit. The record shows that the trustee was faithful in the management of the estate, and exercised good business judgment in its preservation. In fact, it is due alone to the fidelity and good judgment of the defendant that there was any estate left for distribution. When it came into his hands, it was insolvent; and but for his services it would have all gone under the sheriff's hammer. The trial court recognized this fact, and allowed him as compensation for his own services the sum of $1,000, but by refusing to allow him anything as compensation for his legal counsel in this suit in effect compelled him to pay his counsel out of the sum allowed for his own labor. The court put its refusal to allow this item on the ground that in this suit the defendant is denying the plaintiffs' right to any part of the estate and is claiming it all as his own. The allowance of attorney's fees in a case of this kind is to a considerable extent within the discretion of the court. As a rule, a reasonable allowance is made unless bad faith or culpable mismanagement appears. Here there is no suspicion of bad faith, and, as already said, excellent management is shown. The fact that the defendant was advised that under the terms of the will these plaintiffs had no interest in the estate and no right to call him to account should not be charged up against him under the head of bad faith. If he was advised that such were his rights, he had a right to ask the judgment of the court to that effect. That it was a very doubtful question in the case is shown, not only by the elaborate briefs of learned counsel on both sides, but by the very learned written opinion of the trial judge with which we have been favored and by which we have been persuaded. But that stage of the cause once passed, and the defendant ordered to produce an account of his trusteeship, it is then a matter in which the conflict is not necessarily restricted to the plaintiffs on the one side and this defendant on the other, but one in which the respective interests of the beneficiaries among themselves are to be considered, not only among those present, but also the far away heirs of the deceased brother. The court ought to have allowed the defendant at least $500 for his attorney's fees.
