Estate of Cassity

Opinion

ALLPORT, J.

In a petition filed in superior court sitting in probate Lewis J. Deak, a resigned trustee

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of trusts created by will of Ellen Louise Cassity, deceased, seeks an allowance of costs and trustee’s fees and in a supplemental petition seeks an allowance for attorney’s fees and costs, all of which were allegedly incurred in defending litigation commenced by a beneficiary attempting to reopen the 8th, 9th, 10th, 11th, and 12th accounts previously filed and approved and involving objections and exceptions to the 13 th, 14th and 15 th accounts, petition for his removal and an accounting as one of the trustees of the Camilla Cassity trust. Deak’s petitions were denied. In accordance with the request therefor on March 15, 1978, the court below made the following findings of fact and conclusions of law: “In accordance with the Requests of Co-Trustees Deak and Sternberg for Findings of Fact and Conclusions of Law on the Court’s Order denying their Petitions for Attorney’s Fees and Costs, the Court hereby makes the following Findings:

“1) In the 8th through 15th Accounts, Trustee Deak made extensive and large purchases on margin and short sales, which resulted in extensive losses to the trust estate.

“2) These transactions were without authority and constituted a breach of trust.

“3) Trustee Deak was surcharged in the amount of $14,116.80, plus interest, for some of these transactions, and would have been surcharged for the balance, except for the fact that the beneficiary Camilla Cassity had no actual notice of these transactions, and for that reason did not object until after the 8th through 12th Accounts were approved.

“4) Even if Trustee Deak had not resigned as Trustee, the petition of beneficiary Cassity for his removal as Trustee would have been granted due to his breaches of trust.

[572]

“5) Beneficiary Cassity sought no relief against Trustee Sternberg.

“6) It would be inequitable to allow either Trustee Deak or Stern-berg to recover his attorney’s fees and costs.