1 Reported in 26 N.W.2d 204. Appeal by Builders Trust Company from an order of the district court interpreting the language of certain trust indenture provisions and, in connection therewith, disallowing certain items of trust administration expense.
In 1920, appellant was incorporated by three brothers, John, Walter, and Emmett Butler, as a trust company under the Minnesota *Page 198 statutes thereto pertaining. Subsequently in the same year, John established seven, Emmett six, and Walter Butler six trusts for their respective families, and appellant was in each instance named and qualified as the trustee. In 1927, it ceased to be trustee of the John and Emmett Butler trusts but continued as trustee of the Walter Butler trusts. At present it continues to act as trustee for three of the original trusts established by Walter Butler, namely, the three trust estates involved herein, and in addition acts as trustee for three additional trusts established by one of the beneficiaries. According to the record, no other trust business has been, or now is, conducted by appellant. Walter Butler, from 1927 to the time of his death in 1933, owned, aside from certain shares held by the immediate members of his family, all of appellant's common stock. Upon his death, all stock was acquired by his widow and his three children. In 1937, Robert Butler, son of Walter, acquired and has since owned all the common stock aside from a few qualifying shares.
From the date of its organization in 1920, appellant (hereinafter called the trustee) has furnished complete and detailed quarterly statements of its receipts and disbursements as trustee to each of the beneficiaries, but at no time have any accounts of its stewardship been submitted to the court for its approval. Upon petition, however, the court in 1943 authorized the trustee to incur certain attorneys' fees. Each successive quarterly statement included summaries of all previous receipts, disbursements, and balances year by year. At no time did the statements show disbursements chargeable against the respective trust estates for any items other than trustee's fees, taxes, safe-deposit rentals, and bond premiums. In 1927, however, Cooley Butler demanded that Butler Brothers, a family firm in which he owned approximately 27 percent of the stock, be reimbursed for keeping the books of the trustee for 1927 and prior years, and thereupon the trustee's directors adopted a resolution authorizing and directing that a check be issued to Cooley Butler for 27 percent of the costs of such bookkeeping and that the amount thereof be apportioned and charged against the various trusts. The apportionment and charge were made, but in the quarterly statements the *Page 199 charge, according to the testimony, appears as part of the trustee's fees and not as an administration expense item. At no time did the quarterly statements show a charge, or indicate that a charge would ever be made, for the salaries of Erickson and Faricy (hereinafter referred to) or any other employe, or for office rent, light, general telephone service, and stationery.
As its two sole employes, the trustee has employed James R. Faricy from 1929, and Einar Erickson from 1932, to date, each on a part-time basis. The latter's services have been devoted exclusively to the maintenance of bookkeeping records of the trusts, and the former, in addition to certain general clerical work, to the investigation and report on various securities proposed for the investment of trust funds. On the record, it appears that the work of these two employes has been purely ministerial and that any work involving the exercise of judgment and discretion has been performed by Robert Butler as president. There is testimony that the total of the annual salaries paid to Erickson and Faricy exceeds the annual compensation of the trustee.
It is to be noted that pursuant to pertinent trust provisions a certain portion of the net income was each year distributed to the respective life beneficiaries and that the undistributed portion of such income was accumulated and added to the trust principal. The trust indentures also contain certain provisions for the benefit of remaindermen.
In proceedings brought pursuant to Minn. St. 1945, § 501.35,2 the trustee sought the court's interpretation of certain trust provisions common to all three of the trusts involved herein, namely, with respect to the following paragraphs:
"12. Expenses — Trustees' compensation.
"There shall be paid out of and deducted from the gross income all expenses incurred in the administration and protection of the trust estate, all taxes, and the compensation of the Trustees. The Trustee or Trustees shall have a right to receive compensation for their services, to be determined by the Trustee or Trustees, but the aggregate *Page 200 of such compensation shall not exceed five per cent (5%) of the gross income of the trust estate, and the amount paid to the Trustee or Trustees as such compensation at the time of the distribution of the principal of the trust estate or any part thereof shall not exceed three per cent (3%) of the amount of the principal distributed."
"22. Offices, Clerks, Etc.
"The Trustees are hereby empowered to employ such clerks and other persons and to do and perform such acts and things as they may deem requisite for the proper and convenient execution of said trust, and all expenses, including the compensation ofthe Trustees, shall be paid or provided for prior to anydistribution of income or principal to the beneficiaries inthis instrument designated and prior to the accumulation andaddition of income to the principal or body of the trustestate." (Italics supplied as to final clause.)
The trustee in its petition to the court prayed for an order "adjudicating and accordingly instructing" it that "in respect to each item of expense" incurred since the inception of the trust "on account of office expenses, clerk hire, attorneys' fees, taxes and of other nature are and each of the same is allowable as a proper item of expense to the Trustee in each instance," and determining that the trustee shall, as to "each such expenditure," be entitled to full reimbursement without limit as to time. Evidence in accordance with this comprehensive prayer, with particular emphasis upon the nature and extent of the clerical services performed by Erickson and Faricy, was submitted to the court for its consideration. Pursuant to the hearing on the petition, the trial court made an order which provides:
"It is the opinion of the Court and the Court instructs the trustee that said provisions of said instruments mean andinclude such expenses incurred in the management and administration of each separate trust as are peculiar to eachsuch trust. They do not cover or include expenses incurred orpaid in the general conduct of the business of the trustcompany. To be specific, and giving effect to the testimony adduced on the hearing, the trustee is instructed that thesalaries paid to Messrs. Faricy and Erickson, now and for a long time *Page 201 past employed by the trust company, are and have been expensesincurred in the general operation of the business of thecompany. The rent paid by it for office space has been and issuch a general business expense. So are expenditures by it forlight, general and ordinary telephone service, and stationery. No part of such expenditures may be charged against the trust funds involved in this proceeding." (Italics supplied.)
On appeal, the trustee contends (1) that the court erred in holding that the specific expenditures for clerical hire and office rental were not properly chargeable against the trusts involved; and (2) that the court exceeded its jurisdiction by not limiting its determination to a construction of said paragraphs, but actually determining as a fact (and contrary to the evidence submitted) that the specific expenditures described were not for the benefit of or peculiar to the trust involved, but were in the nature of general expenses, for which the trustee alone was responsible.
We observe at the outset that the aforesaid trust provisions are not inconsistent with Minn. St. 1945, § 48.80,3 providing that for the faithful performance of its duties a trust company shall be entitled to reasonable compensation and to reimbursement for all necessary expense.
1-2. This court in In re Trusteeship Under Last Will of Ordean, 195 Minn. 120, 125, 261 N.W. 706, 708, laid down the general rule that:
"It is of course elementary that language free from doubt leaves no room for construction or interpretation. The 'cardinal rule of construction, to which all others must bend, is that the intention of the testator, as expressed in the language used in the will, shall prevail, if it is not inconsistent with the rules of law. * * * What is sought is not the meaning of the words alone, or the meaning of the writer alone, but the meaning of the words as used by the writer.' "
See, 6 Dunnell, Dig. Supp. § 10257, and cases therein cited. *Page 202
In applying the foregoing principle, we must consider the pertinent trust provisions as a whole and not omit any material part thereof from consideration. 6 Dunnell, Dig. Supp. § 10259. Furthermore, in determining the settlor's intent, as well as in applying the foregoing trust provisions to the subject matter, it seems best, as a matter of logical sequence, to consider initially the issue as to expenses which have heretofore been incurred by the trustee and for which it now for the first time seeks reimbursement, and, second, to consider the application to be given to the settlor's language with respect to any and all future expenses. Future expense items may pertain to services which in part at least are of a different nature from those involved in the administration of the trust for prior years. Furthermore, the right to reimbursement for past items of expense seems so clearly to have been waived and forfeited as to justify separate consideration. The desirability of this division in treatment becomes obvious when paragraph 22, with emphasis upon the italicized portion, is read.
The language of the settlor (from paragraph 22) that "allexpenses, including the compensation of the Trustees, shall bepaid or provided for prior to any distribution of income or principal * * * and prior to the accumulation and addition of income to the principal or body of the trust estate" (italics supplied), leaves no doubt as to the intent expressed. Neither interpretation nor construction is in order where language is used with such precision and clarity. Clearly, the settlor intended and specifically directed that in no event should income or principal be distributed and that in no event should income be accumulated to the principal unless and until "all expenses" had first been "paid or provided for." The use of the word "prior" admits of no other conclusion. The words "all expenses, including the compensation of the Trustees," necessarily embrace the salaries of Erickson and Faricy and also disbursements for office rent, light, general telephone service, stationery, and other items of expense. Not only does the language speak for itself, but to attribute any other intent to the settlor would be inconsistent with other portions of the trust instrument with respect to the specific provisions *Page 203 made for the life beneficiary and the remaindermen. The failure to deduct all proper expenses, and particularly any postponement of payment of proper expenses or any withholding of charges of expenses for future accounting, would frustrate the intention of the settlor, would prevent the proper balancing and statement of accounts between life beneficiary and remaindermen, and would distort the true income of the beneficiaries and render inaccurate the statement of the remaining principal of the trust funds.4
3. Since the inception of the trust in 1920, detailed quarterly statements have been issued to the beneficiaries by the trustee, and these statements, which included summaries of all previous receipts and disbursements, showed regular deductions for trustee's fees at the specified rate of five percent of the gross income, together with deductions for taxes, safe-deposit rentals, and bond premiums. No mention or deduction was made for the salaries of Erickson and Faricy or for any office rentals. The record indicates that the entire income was either distributed, or accumulated and added to the trust principal, without paying or providing for the payment of any items not expressly included in the quarterly statements. No specific amount was ever set aside, by accounting segregation or otherwise, to indicate that any additional liabilities had been incurred or were ever contemplated for which payment should later be made. In the light of the express and unmistakable trust indenture provision requiring that "all expenses, including the compensation of the Trustees, shall be paid or provided for" prior to distribution of income and prior to the accumulation of any undistributed income to the trust principal, it follows that the trustee has waived and forfeited any right which it ever possessed to reimbursement for expense items heretofore incurred and for the payment of which the trustee made no provision. It is to be presumed, at least with respect to the plain and unambiguous trust indenture provisions, that a trustee in accepting a trust knows the limitations and conditions governing the administration of the trust estate. 54 Am. Jur., *Page 204 Trusts, § 307. In order to be entitled to reimbursement for administration expenses, the trustee must show substantial compliance with a plain provision requiring the trustee, priorto the distribution or accumulation of income, either to pay or make provision for the payment of such expenses.
4. Here we have not merely a failure to comply with the unambiguous terms of the trust, but also conduct on the part of the trustee, extending over a period of many years, to indicate that it never intended to make a claim for reimbursement for office rent, etc., and the Erickson and Faricy salaries. Failure to make a charge for these items for many years is in itself such conduct as constitutes evidence that the trustee did not expect repayment and thereby waived any right thereto. The situation is comparable to that of a trustee who fails over a period of years to seek or demand compensation for his services. See, In re Shailer Estate (1912), 172 Mich. 600,138 N.W. 205; Spencer v. Spencer, 38 App. Div. 403; Wiener's Estate, 4 Pa. Dist. 422. No manifestation of an intent to seek reimbursement is in evidence. Restatement, Trusts, § 242,comment j.
5. Again returning to the elementary principle that language free from doubt leaves no room for construction or interpretation, we come to the problem of its application to the unitalicized portion of paragraph 22 of the trust indenture, which provides:
"The Trustees are hereby empowered to employ such clerks and other persons and to do and perform such acts and things as they may deem requisite for the proper and convenient execution of said trust, * * *."
It cannot be said that the plain and unambiguous import of the foregoing language justifies a conclusion that the settlor intended to vest in the trustee an arbitrary right to employ "such clerks and other persons" as it should deem requisite, proper, and convenient without regard to the customary andwell-recognized principles of trust estate administration. Likewise, paragraph 12 in providing for the payment of general trust administration expenses creates no powers other than those usually conferred upon a trustee. The *Page 205 settlor was an able and experienced business executive, well versed in established business practices. His language should not be given such a literal and narrow construction that the subject matter and purpose of his bounty are forgotten. His primary objective was to protect and benefit the cestuis, not the trustee. In vesting the trustee with a broad discretion, there is nothing to indicate that the settlor intended thereby to relieve the trustee of the normal duties and functions incident to that office and in consideration for which the usual compensation was to be paid. Taking these trust provisions as a whole and keeping in mind the purpose of the trust, it seems clear that the settlor intended thereby merely to give the trustee a wide discretion in the exercise of its authority to employ such persons as might be necessary or desirable for the advantageous execution of the trust, and that these provisions have no bearing on the determination of what services are properly chargeable to the estate as distinguished from the services to be rendered or furnished by the trustee in return for its compensation. The fact that the settlor named as trustee a trust company, which by the guidance of its officers has been so restricted in its operations as to have no business or income aside from that derived from the management of the trusts established by the settlor or the members of his family or that the ownership of the trust company's common stock has changed so as to be practically concentrated in a single stockholder is no justification for placing such trustee in a different compensation classification from that of other corporate or noncorporate trustees. Trusts are not established for the purpose of providing a trustee with its sole means of maintenance. The appointment of a trustee is merely incidental to the fundamental purpose of the trust, which is the protection of the cestuis. If the trustee cannot discharge his duties for the compensation specified by the settlor, he may, with the court's approval, resign in favor of a trustee capable of so doing,5 or in lieu thereof make a clear and satisfactory showing to the court, with due notice to all interested parties, that the compensation for the work *Page 206 to be done is so inadequate that no other competent trustee can reasonably be expected to act on the terms established by the settlor. In a clear and proper case, no doubt, the court, in order to save the trust, may afford relief. See, 54 Am. Jur., Trusts, § 525; Annotation, 34 A.L.R. 918; Minn. St. 1945, §§ 48.80 and 501.42. Although a trustee who has not accepted the trust may disclaim his appointment, nevertheless, if the appointment is once accepted, he is under a duty to administer the trust even though the specified compensation is inadequate. Restatement, Trusts, §§ 102 and 169. In no event may the trustee increase his compensation by delegating to others, at the expense of the estate, the performance of duties for which he as trustee is receiving compensation. Trustees are not entitled to extra compensation for their usual and normal services or to reimbursement for expenditures made in employing others to perform such services. 2 Perry, Trusts and Trustees (7 ed.) § 911.
Restatement, Trusts, § 188, comment c, relating to the employment of agents, provides:
"The trustee can properly incur expenses in employing attorneys, brokers or other agents or servants so far as such employment is reasonably necessary in the administration of the trust. He cannot properly incur expenses, however, in employing agents to do acts which the trustee ought personally to perform, as where it would be an improper delegation of his duties or powers to act through an agent (see § 171), or wherealthough it would not be an improper delegation to employ anagent yet the service of the agent is one which is covered bythe trustee's compensation." (Italics supplied.)
What are the usual and normal services to be performed by a trustee in return for his compensation? All services involved in the exercise of his discretionary powers or duties in managing the trust and, in addition, certain ministerial duties, are covered by such compensation. Clearly, one of the ministerial duties which a trustee should perform in return for his specified remuneration is that involved in the routine chore of keeping accurate and *Page 207 complete bookkeeping records and in preparing periodic administration accounts. 2 Perry, Trusts and Trustees (7 ed.) § 911.6 In unusual and complicated cases, there may be both justification and need for the employment of specialized skill in the preparation of certain periodic accounts or in establishing a fundamental plan of bookkeeping. Whether the trustee is reasonably justified in retaining the services of an expert at the expense of the estate must be judged according to the test of reasonableness in the light of the peculiar circumstances of each case. The leading case is that of Hagedorn v. Arens, 106 N.J. Eq. 377, 383, 384, 150 A. 4, 8, wherein the court, in determining that the trustee was justified in employing expert accountants for certain purposes by reason of the complicated situation involved, correctly stated the law as follows:
"It is true that under ordinary circumstances the commissions allowed to a trustee or other accountant are intended to cover the work and expense of keeping his books and preparing his account, and that payments made by the trustee to bookkeepers, accountants or lawyers for performing these services which the trustee is supposed to perform for himself, cannot be allowed as items of discharge in his account. * * * 'if the fiduciary chooses to employ others to do his work he must pay them himself.'
"What, however, is the fiduciary's work? Certainly work which is beyond the ordinary or reasonably to be expected skill andability of such a fiduciary, cannot be deemed his work, and he will be entitled to obtain the skilled services of experts where necessary or *Page 208 advisable, and to have their compensation paid out of the estate; and indeed would probably be censurable, and perhaps personally liable, if he failed to do so.
* * * * *
"There may be, therefore, I take it, matters involved in the computation and distribution of income and capital by trustees and in the statement and rendering of their accounts, inunusual and complicated cases, which are beyond the reasonable expectation of the skill and ability of the ordinary fiduciary, in which his employment of an expert — a combination of lawyer and accountant trained in such matters — will be not only justifiable but commendable and even necessary, and for whose compensation allowance may, and should, be made from the estate.
"* * * The complicated work, the legal questions involved, the necessity for skilled knowledge in the matters of apportionment of dividends between capital and income, of apportionment of subsequent earnings or dividends in stock acquired through stock dividends, of making proper income tax returns and payments, and apportioning the same, and the like, all indicate the reasonableness and the propriety of having these things done or supervised by persons skilled along those lines, and that the skill and ability to do these things properly and for the best interests of the estate is not reasonably to be expected of the fiduciary himself.
* * * * *
"Each case obviously must depend on its own circumstances; and the test must be that of reasonableness." (Italics supplied.)
In the application of these principles to the instant case (having in mind that the trustee may not be reimbursed for any unpaid expense items, regardless of their nature, which were heretofore incurred and for the payment of which no provision was made prior to the distribution of income and prior to the accumulation of undistributed income to the trust principal), we find no error in the trial court's determination that the services of Erickson and Faricy, as illustrated by their past employment activities as revealed by *Page 209 the record herein, are not chargeable to the estate. At best, such services have been merely of a ministerial nature and confined to such ministerial duties as are usually rendered by a trustee in return for his compensation. In so holding, we are not precluding the trustee here from showing, in connection with future trust activities and expenditures, that these employes or other persons may not be possessed of certain specialized skills and abilities which, under certain unusual circumstances and for certain limited purposes, may be justifiably employed by the trustee at the expense of the estate in accordance with the principles herein expressed.
We are further of the opinion that the evidence presented to the court sustains its findings that the expenditures for rent, light, general telephone service, and stationery, under the present circumstances, are properly to be allocated to the general operation of the business of the trustee as a trust company and are not chargeable against the trust estates involved herein.
6. We find no merit in the trustee's contention that the trial court went beyond its jurisdiction in adjudicating certain items of expense in connection with its interpretation of certain trust provisions and in its instruction to the trustee as to their meaning and application. The trustee's petition to the trial court contained a detailed prayer for relief which specifically called not only for answers to abstract questions of legal construction, but for an actual adjudication of specific items of expense whereby such items were to be allowed or disallowed. Evidence in accordance with the prayer for relief was submitted to the court for its consideration. The interested parties were before the court. Under the circumstances, we find no error, but we observe that it would have been better practice to have submitted to the court a complete account in connection with the request for the adjudication of specified items of disbursement. The trial court would have been justified in refusing to proceed with such adjudication in the absence of a complete accounting. *Page 210
The order of the trial court is affirmed as herein modified.
Affirmed as modified.
2 See, M.S.A. § 501.35, and cf. Mason St. 1940 Supp. § 8100-13.
3 See, M.S.A. § 48.80, and cf. Mason St. 1927, § 7737.
4 In the absence of a special provision, a similar result would normally follow. See, 4 Bogert, Trusts and Trustees, § 805.
5 See, Minn. St. 1945 and M.S.A. § 501.42, and cf. Mason St. 1927, § 8104, governing the resignation of a trustee; Restatement, Trusts, § 106.
6 Our attention has been called to Leach v. Cowan, 125 Tenn. 182,140 S.W. 1070, Ann. Cas. 1913C, 188. This case is not in point, in that the trustees therein named were not restricted to a specified rate of compensation fixed by the settlor, but were entitled to a reasonable compensation. The remuneration allowed to the trustees was obviously fixed from the standpoint of what was reasonable for the services actually rendered with due regard to the fact that the bookkeeping duties had been performed by another. The only assignment of error was directed, not to the question of whether the compensation awarded was excessive, but to whether the trustees were entitled to any compensation, on the theory that the bookkeeper had performed all their duties.