These are two appeals taken from an allowance of certain sums to William H. Jordan and S.G. Murphy, as trustees of a trust created by the last will of Charles Hanson, deceased, and of which they, together with the appellant H.C. Chesebrough, were the trustees.
Charles H. Hanson died in the city and county of San Francisco on March 31, 1898, leaving a will with an accompanying codicil. He appointed as his executors H.C. Chesebrough and S.G. Murphy, and by the terms of his will created a trust as to certain shares of the capital stock of the Tacoma Mill Company, and appointed said H.C. Chesebrough and S.G. Murphy, together with William H. Jordan, as the trustees of said trust. The will with the codicil was duly admitted to probate and letters testamentary issued to the executors nominated in the will. The trust clause of the will declared: —
"Ninth: I hereby give and bequeath to H.C. Chesebrough, of Oakland, Samuel G. Murphy and William H. Jordan, of San Francisco, all the interest which I may possess at the date of my death in and to the capital stock of the said Tacoma Mill Company, after the payment of all my just debts, funeral expenses and the foregoing legacies, the same to be held by them in trust for the period of five (5) years from and after the date of the entry of this decree of distribution of my estate, or until the death of my son, William H. Hanson, should he die prior to that time."
As to the beneficiaries of the trust the trust clause provided *Page 410 that should the testator's son, W.H. Hanson, be living at the expiration of said five years, the trust property should be delivered to him, and thereupon the trust should cease and terminate; that in the event of his death prior to the expiration of said five years from the date of entry of the decree of distribution, the trustees should deliver all the trust property to the testator's wife, Charlotte Hanson, if then living, or, if she be dead, the said trust property should be delivered to H.C. Chesebrough, and thereupon the said trust should terminate.
The trust clause also provided for the manner in which the trust property should be managed and for the discharge of active duties on the part of the trustees relative to it. It is unnecessary to set forth these provisions in particular, as the conclusion we reach on this appeal makes a consideration of them unnecessary.
In the codicil to his will the testator provided, with respect to compensation to be paid to the trustees for their services as such trustees, as follows: "To H.C. Chesebrough, Samuel G. Murphy, and to William H. Jordan, the sum of six thousand ($6,000) dollars per annum during the full term of their trusteeship, and that said sum of money shall be so paid to each of said trustees in equal monthly installments."
On February 5, 1903, a decree of distribution of the estate was made, under which there was distributed to the trustees named in the will by virtue of the trust clause referred to, 3749 shares of the Tacoma Mill Company stock, this constituting the trust fund to which the trust clause related. The decree of distribution was not, however, in fact entered until June 23, 1903 — more than four months after it had been made, but immediately on the making of the decree of distribution the executors delivered the trust funds to the trustees.
Two accounts were filed by the trustees in the matter of the trust prior to June 25, 1908, in which they credited themselves with compensation as such trustees in the sum of five hundred dollars per month from February 5, 1903, to November 5, 1908, which included compensation from the date of the making of the decree of distribution to its entry. These accounts were settled and no appeals taken from the orders of settlement.
The widow of the deceased, Charlotte Hanson, named as one of the beneficiaries of the trust, died prior to the making of the decree of distribution and commencement of the trust *Page 411 term, and on February 5, 1908, H.C. Chesebrough, another of the beneficiaries (also one of the trustees) relinquished to W.H. Hanson, the only other beneficiary, all his interest in the trust property, thus constituting W.H. Hanson the sole beneficiary of the trust fund.
It appears in a general recital in the decree, from particular portions of which these appeals are taken, that subsequent to his relinquishment of his interest as beneficiary in favor of Hanson, and some time between February 5, 1908, and June 23d of that year, Chesebrough, as trustee, applied to the court to have the trust declared terminated, which application was denied. Thereafter, and on June 25, 1908, the appellant W.H. Hanson alone, as a sole beneficiary, filed a petition for an order in the matter of said trust, requiring the rendition of a final account of the said trustees; prayed also for a decree declaring the trust terminated as of February 5, 1908, and for a distribution of the trust property to him as the sole beneficiary under the trust.
The answer of the trustees W.H. Jordan and S.G. Murphy to this latter application, practically set up the facts as heretofore stated, and alleged that the trust terminated under the terms of the will on June 23, 1908, and not on February 5, 1908, as claimed by the petitioner. In both answers a claim for compensation for trustees from February 5, 1908, to June 23, 1908, was made, and a further claim on the part of W.H. Jordan for the sum of five hundred dollars expended by him for attorney's fees in resisting the application previously made by their co-trustee H.C. Chesebrough to have the trust terminated.
The trustee H.C. Chesebrough in his answer joined with W.H. Hanson in his application to have it determined that the trust terminated on February 5, 1908; made no claim for fees after February 5, 1908, and rendered an account of receipts and disbursements from which it appeared that there was in the hands of the trustees 3749 shares of the capital stock of the Tacoma Mill Company and $31,954.23 in cash as the trust fund. The court on the hearing of the petition and answers settled the accounts of the trustees, allowed S.G. Murphy and W.H. Jordan fees as such trustees for the period between February 5, 1908, and June 23, 1908, of $2299.88 each on a basis of five hundred dollars per month or six thousand dollars *Page 412 per annum, and allowed trustee W.H. Jordan an additional sum of five hundred dollars for the services of his attorney as prayed for in his answer; declared the trust terminated as of June 23, 1908, and that the beneficiary W.H. Hanson was entitled to all the trust property.
These appeals are from so much only of the order as allows fees to the trustees S.G. Murphy and W.H. Jordan between February 5, 1908, and June 23, 1908, and allowing an additional sum of five hundred dollars to W.H. Jordan for fees of his attorney, and are taken by both Chesebrough, as one of the trustees, and Hanson as the sole beneficiary.
The first contention of the appellants is that the court erred in denying the original application of Chesebrough as trustee for a decree terminating the trust, which proceeding is referred to in general terms in the present decree. They insist that after the death of Mrs. Charlotte Hanson and the relinquishment to W.H. Hanson of his interest in the trust property by the only other beneficiary, Chesebrough, it was the duty of the court on application therefor to terminate the trust. This proposition is argued at length by counsel for appellants, but we are at a loss to perceive how any such question can be presented or considered on this appeal. All we have in the record as to any proceeding brought for the termination of the trust anterior to the proceeding in which these appeals are taken is a general recital in the decree appealed from that a proceeding of that character was instituted and was unsuccessful.
This recital is only made in connection with an allowance by the court to the trustee Jordan of fees to compensate his attorney in resisting that petition for the termination of the trust. If a prior petition for the termination of the trust was made (and the recital in the decree discloses that there was) it was a proceeding independent of the present proceeding, and when denied it was the duty of the petitioner to appeal directly from the order denying that application, if dissatisfied with it. He cannot raise the question of the validity of the order of the court denying his former petition in this proceeding, which is entirely independent of the former one, based on a separate and distinct petition and involving an entirely different decree.
Aside from this, however, the only question which could have been involved in the prior proceeding was whether the *Page 413 trust terminated on February 5, 1908, or June 23, 1908. But that was the precise question which in the subsequent petition by the appellant Hanson, joined in by Chesebrough and culminating in the present decree, was presented to the court for determination, the petitioner and Chesebrough claiming that the trust terminated on February 5, 1908, and the respondents Murphy and Jordan, as trustees, claiming that it terminated on June 23, 1908. On this question, the trial court in the decree from portions of which these appeals are taken, adjudged "that the said trust created by the last will and testament of Charles Hanson, deceased, terminated on the 23d day of June, 1908." No appeal is herein taken from this portion of the decree, and that being true the adjudication by the court that the trust terminated on June 23, 1908, is final and conclusive on that question.
The decree of the court as to when the trust terminated not being open to question, it would appear that the compensation of the trustees as allowed by the court, and the correctness of which appellants question, is in accordance with the express provisions of the trust and the will on the subject. The trust provides that the property shall be held "for the period of five years from and after the date of the entry of this decree of distribution of my estate," and the provision of the will with respect to the trust clause provides that the trustees shall receive as compensation for their services six thousand dollars per annum payable in monthly installments during the full term of their trusteeship. As the trust did not terminate until June 23, 1908, it is quite obvious that the trustees were, by the express terms of the will, entitled to compensation up to that date, and that the allowance for the period of which appellants complain — from February 5, 1908, to June 23, 1908, was in strict compliance with the terms of the trust. This seems so plain as to make further discussion on the subject unnecessary.
Nor could the correctness of the determination of the court be affected by the fact that the trustees took the property and held it as such from the date of the making of the decree of distribution until the entry thereof, the latter date being the time when, by the language of the trust, the trust term created by the testator was to commence. It is not pretended that the delay in entering the decree of distribution was occasioned by *Page 414 any act of either the executors or the trustees. It was the duty of the trustees to accept the trust funds when the decree of distribution was made and the executors prepared to turn them over to them, and to hold them until the entry of the decree, from which date their active duties as trustees were to commence. They were entitled to compensation during that period, and it was proper for the court to make an allowance to them on the basis prescribed by the testator for their compensation during the five years after the entry of the decree. Anyhow, if there could be a question on this point, inquiry into it would be foreclosed by the order of the court made in the settlement of the first account of the trustees in which they credit themselves with compensation for that period, which was allowed by the court, and from which order of allowance no appeal was taken.
With respect to the allowance by the court to the trustee Jordan of the sum of five hundred dollars as fees for his attorney in resisting the effort of appellant Chesebrough in the first proceeding to terminate the trust. As by the terms of the trust it was not to terminate until the expiration of five years from the date of entry of the decree of distribution it was the duty of the trustee to resist any attempt to terminate it before that period. It is well settled by the authorities that in the discharge of such duty a trustee has a right to employ attorneys and to have an allowance in a reasonable amount made by the court from the trust funds for their compensation. No claim is made that the allowance is unreasonable.