Conley v. Waite

[506]

NOURSE, P. J.

The plaintiff sued to quiet title to a 3/24th undivided beneficial interest in certain real property held by defendant Small as trustee under a trust agreement which was pleaded in full in the complaint. The trustee was joined as a party defendant, but for what reason it does not appear. The trustee filed an answer denying, on lack of information or belief, plaintiff’s claim of title, and pleading, as was done in the complaint, the declaration of trust and his right to act as trustee under it. He did not, however, make any claim to the beneficial interests in the real property which were in issue. Before the cause was tried the defendant Waite abandoned her defense and stipulated that plaintiff might take judgment as prayed for. The trustee made the same stipulation, but claimed the right to an allowance of counsel fees for appearing and defending the action. Judgment was accordingly entered for plaintiff as prayed in her complaint, but the trustee was awarded the sum of $150 for counsel fees, which was made a lien on plaintiff’s interest in the property. The plaintiff has appealed from the portion of the judgment covering these fees.

The rule of law applicable to the question is that a trustee is entitled to reimbursement of all expenses actually and properly incurred by him in the performance of his trust (sec. 2273, Civ. Code) ; that he is not entitled to reimbursement of attorney’s fees paid out in litigation which he has inaugurated unnecessarily or without warrant

(Mitau

v.

Roddan,

149 Cal. 1, 16 [84 Pac. 145, 6 L. R. A. (N. S.) 275];

Estate of Gartenlaub,

185 Cal. 648, 654 [198 Pac. 209, 16 A. L. R. 520] ; 39 Cyc., p. 480) ; but, that when an unfounded suit is brought against him by the

cestui que trust,

attorney’s fees may be allowed him in defending the action and may be made a charge against the interest in the estate of the party causing the litigation. (39 Cyc., p. 480; Perry on Trusts, sec. 903a.)