(dissenting).
The majority opinion upholds the allowance of an additional commission of $190,-730 to the trustees and fees and expenses to their attorneys for services at trial and appellate levels. I respectfully dissent from both these rulings, being of opinion that the construction given the testator’s will and the allowance of attorneys’ fees against the fund in this type of case run counter to the adjudicated cases.
The majority opinion properly points out that our search must be for the true intent and meaning of the testator, in which quest we must consider the will as a whole “and not give undue preference to any particular clause.” Then, respectfully submitted, it proceeds to reach its conclusion principally on the basis of definitions of the word “disbursements”, without sifting through the testamentary text for marks and indicia of testamentary intent. “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing, * * * [h]ut it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary * * Judge Learned Hand in Cabell v. Markham (C.C.A.2) 148 F.2d 737, 739. Paraphrasing his subsequent language, it must be remembered that testamentary trusts have some purpose or object to accomplish, whose sympathetic discovery is the surest guide to their meaning.
No one can read this record without being impressed with the fact that Mr. Bab-ler’s goal was to develop, improve and maintain a public park in honor of his brother within the 20-year period following his death. That is why he established this trust. His primary goal was not the accumulation of large funds to be turned over *737to the state 20 years hence. His primary objective was the development and improvement of the park in the immediate future — during- that 20 year period — and he deliberately elected to compensate his trustees on the basis of the amount they spent to accomplish his objectives. He drafted his will in a manner designed to encourage their expenditure of the funds available, within the prescribed limits each year. This is the message this will delivered to his trustees, briefly stated: “I want to develop a park in memory of my brother. I am hopeful that if it is properly planned and developed the state will take the park over at the end of 20 years. I am willing to pay you 7% of what you disburse during this period in improving and developing the park, and whatever is left I want you to turn over to the state.” His intention was to insure the steady and substantial development of the park (originally raw land) over the period in question. The trust provisions of the will clearly contemplate a continuing expenditure of a considerable amount of money, both income and corpus, for these purposes. Item 14 directed the trustees to apply the entire income from securities to those uses and purposes. Item 15 authorized the trustees to spend all or any part of the net income, and in addition such part of the corpus of the trust estate (not to exceed 7% of the annual book value of the then corpus) as in their opinion and discretion was deemed advisable. Any net earnings not spent during any current year were to be added to corpus. Any part of the 7% of corpus'not spent in any year was to accumulate and be available in the following or subsequent years. The testator contemplated annual stops. In this setting, in Item 17, he provided trustees’ compensation at the rate of 7% “of all disbursements of income and corpus.” That he contemplated that the trustees’ compensation would be figured and paid annually is a conclusion borne out by the provisions immediately following in Item 17, that if a trustee’s services be terminated during the course of any year he should receive “a pro-rata part of that year’s compensation,” (our emphasis) and that a fractional part of a month should be considered as a full month.
It is clear from the will that testator was willing that during the 20-year active period of the trust the corpus of the estate might be materially depleted or even exhausted.1 Mathematically, if the value of the estate had remained constant and the maximum 7% drain on the corpus had been pursued as an annual policy (a possibility Mr. Babler specifically authorized), the corpus of the estate would have been exhausted in 16 years or less. If that had happened there would have remained for final distribution nothing upon which the trustees could have made claim for further *738commissions. This possibility supports the conclusion that testator intended that the full measure of the trustees’ compensation should be 7% of all disbursements made annually as the administration of the trust proceeded. We believe that testator had this in mind when he fixed the compensation to be paid the trustees at the generous rate of 7%, which was 2% more than the statutory rate of commissions paid executors, and more than the Schedule of Fees of Mercantile Commerce Bank & Trust Company (the corporate trustee’s predecessor), effective March 15, 1938, which in the case of testamentary trusts provided an annual commission of 5% of the gross income of the trust estate, and 5% of the market value of the principal of the trust estate, including real estate, “whenever the same is distributed by the trustee.”2 Testator’s generosity was not without bounds, however, as is seen by his reduction of the fees of the executors (whom he intended to be one and the same as the trustees) from the statutory fee of 5% to 2%, in view of their dual roles.
There is this further consideration. Testator referred to the trustees’ 7% commissions as “compensation for their services hereunder”, services which were to be compensated to date at each year’s end. The final transfer of assets to the state treasurer at the termination of the trust would require little work. It would be a fairly simple and uncomplicated task, particularly if the funds at the end of the 20-year period had been wisely disbursed and substantially expended, so as to have effectively achieved the desired objectives. It is unlikely that this testator, who was so circumspect in the matter of allowance of fees and commissions, envisioned what actually happened (the expenditure of comparatively small amounts for development through a period of unprecedented inflation during which the constantly accumulating funds reached large proportions at the end of the 20-year period) or that he intended that the trustees receive 7% of the total value of an estate over more than two and one-half million dollars. His desire was to pay the trustees for efficient annual expenditure (for disbursing, not saving) and not to pay them 7% of the total value of a large accumulation of unspent money for the simple act of distribution. We are certain he did not contemplate that his trust estate would be cut down nearly two hundred thousand dollars in commissions for the formality of distribution, and it is completely inequitable to countenance such a result.
It is significant that this lawyer-testator, whose preoccupation with the matter of compensation is so apparent (it was his method of making sure the park was developed and he referred to trustees’ compensation six times and to executors’ fees five times), prepared a 13-page will without using any language indicative of an intention to compensate the trustees at termination of the trust.
Item 16 provides for termination of the trust and final disposition of trust assets but neither in that item, nor elsewhere in the document, did testator mention compensation to the trustees at termination. There is no provision in this will that on final distribution the trustees first pay themselves 7% of unused income or undis-posed of corpus and then transfer the net remaining assets to the state treasurer.
The only reference to Item 16 in the majority opinion is the statement that it is significant that in that item testator did not use the word “distribute”, but stated that the remainder of the estate should be “paid over, transferred and conveyed”. We fail to grasp the significance of this fact, which is no more enlightening than the fact that testator failed in Item 16 to use the word “disburse”, on which the trustees so confidently rely. If testator had intended to compensate the trustees not only at annual *739stops but also on final distribution he easily could and no doubt would have inserted such a provision either in Item 16 or elsewhere in his will. He did not do so, doubtless because such a provision would have been inconsistent with his main goal. Instead, in Item 16 he directed that on the 20th anniversary of his death, or as soon thereafter as practical, the trust should cease and terminate, and that “the entire remainder of the trust estate then in the hands of my trustees, or the survivor of them, both corpus and unused income and revenue, shall forthwith on receipt thereof, be paid over, transferred and conveyed to the then Treasurer or Acting Treasurer of The State of Missouri, to be used and expended”, et cetera (emphasis ours). He directed in certain terms, with no exceptions that the entire remainder of the trust estate be paid forthwith to the beneficiary without any provision for deductions for any purpose, and in particular without recognition of a right in the trustees to withhold part of the assets and for a closing-out fee on termination. The direction was peremptory, and the admonition was clear that all the trustees were to get was a receipt from the state treasurer.
As we have indicated, the majority opinion reaches its conclusion principally on the basis of definitions of the word “disbursements”, which trustees maintain applies to all payments, expenditures, and distributions of every nature related to parting with assets, including final distributions. The opinion cites five cases in which opinion writers have used the term in discussing situations involving final distributions. In none of these cases was the question of nomenclature at issue; they are not cases involving the construction of the word “disbursements” as used in an instrument.3 The trustees cited them to show that this court has used this word to denote a transfer of corpus in the course of a final distribution. Whether testator so understood the word “disbursements” is speculative at best. The common usage, general acceptance, and dictionary definition of “disbursement” is a payment or an expenditure. “Even the tyro in the use of our mother tongue attributes no other meaning to the word than to pay out or expend.” State ex rel. Thompson v. Board of Regents, banc, 305 Mo. 57, 264 S.W. 698, 701, a case directly involving the meaning of “disbursement” in the handling of funds. Ordinarily in the administration of estates and trusts, the term “disbursement” refers to a payment or expenditure during the course of the administration of the estate or trust. A disbursement is usually a payout in satisfaction of a debt or claim, or an appropriation made under an order of court. In common legal parlance, “disbursement” is not a term frequently associated with the final pay-out or transfer of assets at the termination of estates or trusts. At that juncture in the administration, the technically correct term is “distribution” or “final distribution” or “distribution of assets”. Item 25 of the will demonstrated testator’s familiarity with the statute fixing executor’s fees (Sec. 220, RSMo 1939), which statute referred to “disbursements and appropriations” made by order of the court during the course of an administration. Doubtless testator, who was knowledgeable in the language of the law (in addition to testator’s background as given in the majority opinion, it should also be stated he was a district delegate to the 1943 Constitutional Convention, Official Manual of Missouri, 1943-44, p. 169), appreciated the statutory distinctions between disbursements and distribution.4
*740The fact is, as the attorney general contends, that the allowance of additional commissions in the sum of $190,730 is “inequitable, unreasonable and unconscionable”. I recognize that if additional compensation were due under the terms of the will this would be an extraneous consideration, but it is not due for the reasons heretofore stated. To hold that it is due requires a strained construction which, when we consider the minimal services rendered by the trustees, results in a miscarriage of justice.
From the oral testimony admitted and the offers of proof, it appears that, abdicating their responsibility, the trustees entrusted to another group the exercise of the discretion vested in them by the will, contenting themselves with doing nothing to carry out the objects of the trust except to disburse funds requisitioned by that group. In 1937, Jacob L. Babler, by a separate instrument, created a trust called Jacob L. Babler Perpetual Endowment Trust Fund for Dr. Edmund A. Babler Memorial State Park, to turn the 2,400 acres of raw land into a park with grading, landscaping, roads, walks, playgrounds, playing fields, recreational facilities, equipment, and buildings. He named five trustees to administer the fund which then consisted of Mr. Babler’s interest in certain Mexican lands leased to an oil company. Within a few years the Mexican government expropriated the oil lands and the trust was not otherwise funded. When Mr. Babler drafted the will which is before us, he knew these facts and the testamentary trust here for construction recited the same objectives and purposes as the 1937 trust. Despite the fact that the testamentary trust imposed upon the testamentary trustees affirmative duties requiring the exercise of their discretion in the management, operation and planning of and for the park, Mercantile and the individual trustee used the perpetual endowment trustees to oversee the park and make the real decisions with respect to construction, alterations and changes, thus failing to exercise personally the discretion vested in them, and relieving themselves of the burden of management and administration entrusted to them. The situation was described in these words by counsel for the individual trustee in oral *741argument before us: “Insofar as the expenditures of the park are concerned, that was supervised and controlled exclusively by trustees which had been named by an indenture which had been created about six years before he wrote this will. Those trustees functioned during the entire 20-year period of the administration of this trust estate. It was they who made requests for appropriations at the end of every year * * *. The trustees of Bab-ler Park ran the park. It was they who ordered improvements, it was they who hired employees of the park to cut the grass or to maintain it or do anything else that was necessary * * * They [the trustees under the will] had nothing to do with the supervision of the park. All they had to do was pay these trustees.”
The offhand manner in which the trustees treated the directions written into his testament for their guidance by Mr. Bab-ler is further illustrated by the fact that the trustees completely ignored Item 24 of the will, which cautioned the trustees in the event the trust be involved in litgation and the services of attorneys be required, “to have a written contract with such attorneys and counsel, made in advance of any services rendered, with specific arrangements as to fees and compensation, and under no circumstances, should attorneys be engaged without a definite written understanding, made in advance, as to what their charges will be.”
Strange as it may seem, the trustees for a long time failed to give any formal accounting of their stewardship of this trust over the 20-year period, despite the rule that the right of a beneficiary to an accounting follows as a matter of course, Engelsmann v. Holekamp (Mo.Sup.) 402 S.W.2d 382, and notwithstanding the written demand of the attorney general for a verified written accounting of their management and disposition of the trust property from the dates of their appointments as successor trustees. It was not until after this case had been tried and the trial court prodded the trustees, expressing surprise that an accounting had not made, that they finally did file an accounting. This reluctance to account was not the subject of any complaint in the motion for new trial or on appeal and so the point has not been preserved for appellate review, but it is noteworthy that these trustees, now claiming nearly a fifth of a million dollars as additional compensation for their services, did not take their responsibilities seriously enough to make an accounting on written demand by the legal representative of the beneficiary until pointedly urged to do so by the trial court.
Trustees urge that appellants’ construction will result in their having been “most poorly compensated” for their services and would limit them to “meager compensation”, contrary to the generous treatment of the trustees intended by testator. The $56,000 represents 7% of the total amount of income and corpus disbursed during the term of the trust. Had there been no express provision in the trust fixing the trustees’ fees or providing any basis for computing them, and no subsequent contract relating thereto, the trustees’ commissions, if the general rule had been followed, would have been based upon the amount of the yearly income received and paid out by them, see In re Buder, banc, 358 Mo. 796, 217 S.W.2d 563, 573.5 In such case the *742court would have allowed reasonable compensation and likely would have approved the more modest rate of 5%, considering that Mercantile’s own Schedule of Fees specified “[f]ive per cent on the gross annual income of the trust estate as and when distributed” as the commission on income applicable to testamentary trusts. The compensation actually received was not poor or meager. The $56,000 received represents more than 4% of the average market value of the entire trust during the 20-year period.
Trustees further urge that appellants’ construction would place them in a position to deal in their own behalf with the trust assets and invite them to dissipate the assets as rapidly as possible in pursuit of their own self interests to the possible detriment of the trust. It is a strange argument for a professional trustee to say, “Since I may waste the property if I know I can collect commissions only on the amount I spend annually, therefore, you must make sure I do not succumb to this temptation, by permitting me to collect a commission on the balance remaining at final distribution.” The possibility of dishonesty on the part of the trustees is no argument for placing a certain construction on testamentary language. If trustees should violate their trust and engage in the perfidy suggested they would be subject to removal. For any losses sustained by the trust by reason of acts done in bad faith or for self aggrandizement, they would be liable to reimburse the trust. The trustees were legally bound to properly discharge the trust responsibilities assumed and are entitled to no extra credit for faithful performance. By accepting the trust the trustees bound themselves to accept the compensation fixed by the trust instrument, and are prevented from collecting a larger sum. In re McKinney’s Estate, 351 Mo. 718, 173 S.W.2d 898, 902; Marshall v. St. Louis Union Trust Co., 209 Mo.App. 13, 236 S.W. 692, 693; Oppliger v. Sutton, 50 Mo.App. 348; Anno. Trustees and Executors—Fees, 19 A.L.R.3d 520, 529, Sec. 6 [a]. We cannot read beneficial provisions into a trust agreement on the basis of meritorious service.
Considering the will from its four corners, together with the extrinsic evidence noted, we conclude that testator intended *743that the measure of the trustees’ compensation be an annual payment calculated at the rate of 7% of all amounts disbursed by them, without additional allowance on final distribution. To uphold the decree of the circuit court we would be obliged to read into the will something that is not there and give expression speculatively to an intention not clearly discernible from the language used by the testator and at war with what he was trying to accomplish under the trust. The withholding by the trustees of $190,730 from the assets of the estate at termination of the trust cannot be sustained.
The other question is the propriety of any allowance of attorneys’ fees and expenses for successfully charging the trust estate an additional $190,730 in commissions — winning the case and making the trust estate stand good for the payment of attorneys’ fees and expenses. The majority opinion seeks to justify these allowances on the ground that an ambiguity existed in the trust instrument resulting in a legitimate controversy as to the proper distribution of the trust fund or the adminis-ration of the trust; that this ambiguity resulted in an impasse in the dispute between the trustees and the state treasurer; that the estate could not be finally terminated and the assets delivered to the beneficiary until this question was determined; that it was reasonable and essential that the suit be filed; that the trustees had a reasonable basis for making their claim; that a trust fund should bear the expense of its own administration, and that these allowances should be made even though the trustees would benefit by the outcome of successful litigation.
No case is cited in the majority opinion authorizing an allowance in this situation. As authority the opinion quotes excerpts from Jesser v. Mayfair Hotel, Inc. (Mo.Sup. banc) 360 S.W.2d 652, and Coates v. Coates (Mo.App.) 316 S.W.2d 875, and cites Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104; St. Louis Union Trust Company v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; and Lang v. Taussig (Mo.App.) 194 S.W.2d 743.
None of these cases justifies these allowances. The quoted excerpts must be considered in the context of the facts in those cases. The quotation from Jesser, while apropos to the facts of that case, should not be applied in the case before us. The issue in Jesser was not the right of persons in the position of these trustees to commissions and attorneys’ fees. Attorneys’ fees were allowed in Jesser as a sequel to litigation instituted by the beneficial owners of corporate stock issued in connection with a reorganization plan. The beneficial owners brought a suit in equity against the trustees named in a voting trust agreement to enjoin them from consummating a proposed plan to sell the stock. On appeal this court found that the primary and dominant purpose of the litigation was to enjoin an unauthorized and unlawful sale of trust assets and that the result of plaintiffs’ action was to preserve and keep intact the trust estate-, that the construction of the voting trust agreement was of primary importance and not merely incidental. In that case we said: “Where one goes into a court of equity and takes the risk of litigation on himself and successfully creates, protects, or preserves a fund or brings about the creation, increase, or protection of a fund in which others are entitled to share, those others will be required to contribute their proportionate part of counsel fees and expenses, and the equitable way to apportion these fees and expenses is to allow them against the fund. * * * ”, 360 S.W.2d 1. c. 661. The object and result of the suit was to preserve and keep intact a trust estate and to prevent a wrongful disposition of trust assets. The protection of a fund in which others were entitled to share was involved. What the parties did benefited the fund, and only incidentally benefited themselves. In the case at bar, the primary purpose of the litigation instituted by the trustees was to collect commissions claimed by them. Nothing they *744did kept the trust estate intact, but could only diminish and partially deplete it. The fund was not benefited. No other parties were benefited. The resolution of an impasse was strictly incidental and could have been readily solved by turning the corpus over to the state and holding out only the disputed amount for fees so that the operation of Babler Park could have gone on without interruption. The fact is that the trustees had already paid themselves the commissions and this, undoubtedly, was an important factor in their taking the position they did. In such case the litigating parties should be required to bear the expense of the litigation, the principal and dominant purpose of which is self-serving.
The quotation from Coates v. Coates, supra, which on its face would seem to justify the allowances, likewise was expressed in a wholly different setting. In the Coates case there was a legitimate dispute between testamentary trustees and beneficiaries as to whether capital gains in mutual fund companies would be regarded as corpus (and go into the principal) or as income (and go to the life tenant). These two interests were disputing the proper allocation of these funds. It was in that background that the court properly stated that a trust fund should bear the expenses of its own administration. In Trautz v. Lemp, cited in the majority opinion, this same rule, was held inapplicable where litigation was instituted merely “ * * * to enable the litigant to obtain something as an heir” [the same would apply to obtaining something as a trustee], and the court held attorneys’ fees “ * * * should not be allowed, even if the litigation incidentally settled the status of the trust estate, that not being the purpose of the litigation”, 72 S.W.2d 1. c. 108. The citation of St. Louis Union Trust Company v. Kaltenbach in the majority opinion is puzzling, since there the court made clear that parties to litigation of this sort who make contentions solely for their own benefit and whose efforts will not result in “real benefit to the estate” (emphasis supplied) are not entitled to any allowance out of the estate. Kingston v. St. Louis Union Trust Company, cited in the majority opinion, is not persuasive under the present facts because there attorneys’ fees were allowed to vested remaindermen for maintaining litigation to settle a legitimate dispute between them and the trustees arising out of the interpretation to be placed upon an ambiguous provision of a will, which if determined in favor of plaintiffs would have entitled them <to certain substantial annuities. In the Leggett v. Missouri State Life Insurance Company case, the efforts of the attorneys there resulted in the recovery and recapture of several million dollars for the benefit of those entitled to the distribution of the fund, which is the direct opposite of the situation in the present case.
We believe it can be confidently stated that in no case cited in the majority opinion or to be found in the law of this state has the court allowed attorneys’ fees to a trustee who institutes litigation not for the purposes of settling conflicting claims or to resolve legitimate disputes of entitlement to the fund, but for the purpose of settling the trustees’ own claim to commissions.
Counsel should be required to look to their clients for the fees earned and expenses incurred. The record shows counsel for the individual trustee does not intend to charge her anything if he is not successful. Counsel for the corporate trustee say they intend to bill their client for $22,500 for services through the trial court (and presumably more for services here) if fees are not allowed.6
*745The applicable rule is that litigants whose action is not of benefit to the trust estate (not filed to create a fund, or to preserve, protect or augment or prevent the dilution or diminution of an existing fund), but is filed for the dominant purpose of obtaining commissions for themselves, thus promoting interests adverse and antagonistic to the estate which, if successful, will result in the depletion of trust assets, must finance their own lawsuit. The “no benefit-no fee” principle is embedded in our law and has been applied frequently. In Clark v. Mississippi Valley Trust Co., 357 Mo. 785, 211 S.W.2d 10, a life beneficiary of a trust sued the trustee, alleging that the latter had not paid him allowances according to the intention of the settlor. Attorneys’ fees for prosecuting the action were not allowed out of the trust estate because plaintiff instituted the action for his own benefit and not for the benefit of the trust estate. In St. Louis Union Trust Co. v. Kaltenbach, supra, 186 S.W.2d 1. c. 583, where it was necessary for a trustee to institute proceedings to construe a will to ascertain what was meant by an ambiguous provision with reference to the vesting of an estate and to obtain directions with respect to which parties should take, it was held proper to allow attorney’s fees to the trustee, but not to the defendants because “each defendant was contending for a construction under which he could obtain the whole estate for himself. Their contentions were solely for their own benefit and they are not entitled to any allowance out of the estate for merely seeking to benefit themselves.” Where the purpose of the action is not merely for the purpose of construction of the trust instrument, but for the purpose of the destruction of the trust estate the rule, as stated in Trautz v. Lemp, supra, 72 S.W.2d 1. c. 107, is that “Where an instrument that creates a trust estate is so ambiguous that two or more persons may fairly make an adverse claim to the fund, either may resort to a court of equity for correct interpretation, and the court is justified in not only assessing the cost of the litigation against the estate, but also in allowing reasonable attorneys’ fees payable *746out of the trust estate both to the defeated and succesful parties. * * * But this rule does not apply where the bill is not filed merely for the purpose of obtaining a construction of the instrument creating the trust and the direction of the court, but to enable the litigation to obtain something as an heir. * * * Under these circumstances the cost including the attorneys’ fees should not be allowed, even if the litigation incidentally settled the status of the trust estate, that not being the purpose of the litigation. * * *. [I]n what way would the trust estate have been benefited? The only answer we can see to this question is that the trust estate would not have received any benefit, in fact, the trust estate would have been destroyed. ‘There is no equity in requiring the trust fund to remunerate those whose sole claim to consideration is the fact that they endeavored to destroy that fund.’ ” (our emphasis). See also, Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677, 684; Hereford v. Unknown Heirs (Mo.App.) 306 S.W.2d 648, 651; Mercantile Trust Co. v. Hammerstein (Mo.Sup.) 380 S.W.2d 287, 292, and 96 C.J.S. Wills § 1096, p. 809.
The same rule applies where the purpose is the diminution of the trust estate. In Leggett v. Missouri State Life Insurance Co. (Mo.Sup. banc) 342 S.W.2d 833, 936, the foregoing rules were restated, with this caveat: “ * * * This rule is more properly stated that there can be no allowance of counsel fees from a fund if the interests of the party claiming the allowance are antagonistic to those entitled to the fund. Annotations 49 A.L.R. at p. 1160. The usual situation in which this rule applies is where a party by litigation seeks to destroy or diminish the fund. * * *” (our emphasis).
The ruling of the majority opinion on the subject of attorneys’ fees and expenses establishes new law which, carried to its logical conclusion, opens up a dangerous potential. Any time in the future that a fiduciary claims commissions which re-maindermen or other beneficiaries consider not allowable, or excessive, the trust estate will be burdened with the payment of the attorneys' fees incurred in the fiduciary’s effort to get more for himself (even in a case where, as here, the balance of the estate has been turned over to the distribu-tee). This will constitute an open invitation to fiduciaries to litigate for dubious or excessive allowances and commissions, secure in the knowledge that the litigation will cost them nothing, since the attorneys’ fees and expenses will have to be paid out of the trust fund.
For all of the foregoing reasons I would reverse the judgment and decree and remand the cause with directions to enter a judgment and decree consistent with this opinion, directing the trustees to transfer to the state treasurer for the uses and purposes expressed in the trust instrument all assets of the trust estate withheld by them, without deducting any amount for trustees’ commissions on final distribution or for fees and expenses of attorneys in the trial court or on appeal.
. This is not surprising, in view of Mr. Babler’s intense determination to develop a fitting memorial for his beloved brother. Mr. Babler wanted the park graded and landscaped, roads and walks built, playgrounds, playing fields and recreational facilities provided, constructed, and properly equipped and such buildings as necessary erected (see exhibit 3, the original declaration of trust made by Mr. Babler). This required the expenditure of money in sizeable amou.-⅛, inasmuch as Babler Park is a 2,400 acre tract (Official Manual of State of Missouri, 1969-70, pp. 358-9).
This is why, in my opinion, Mr. Babler was careful to give his trustee.: authority to spend up to 100% of current net income and up to 7% of corpus annually, with the unused portion to be cumulatively available. It also explains why he set their compensation at 7% of all disbursements of income and corpus. He wanted them to develop and enhance the park and they were to be compensated for doing so. This is what he meant by “disbursements”.
It is ridiculous to conclude that Mr. Bab-ler was willing to pay his trustees to hoard and invest his money for 20 years and then, they having spent only small amounts on the park in the interim, turn it over to the state, intend that the trustees take 7% of the balance on hand at final distribution, on the theory that this was a “disbursement”. Yet under the majority opinion this could happen; the trustees would get 7% either way they went. This is directly contrary to what testator was trying to accomplish.
. As indicative of the common and accepted usages of the terms, note that Mercantile itself correctly used the term “distributed” in its schedule, and did not use the term “disbursed” in the context in which they now claim it appropriate.
. It is respectfully submitted this fact is ignored by the majority opinion, which ascribes to the testator knowledge of a certain meaning for the word “disburse” based on these cases, despite the fact the eases do not purport to touch the issue.
. Joining issue on the matter of dictionary definitions, while it is true that “distribute” is included among the secondary meanings of “disburse”, the primary dictionary meaning of “disburse” is “to pay out or expend”. Neither the 2nd nor *7403rd edition of Webster’s International gives “distribute” as a synonym of “disburse”.
The exact word used in Item 17 of the will is “disbursements”. The law dictionaries define this word as meaning money paid out or an amount or sum expended. See Cyclopedic Law Dictionary, Black’s Law Dictionary, Bouvier’s Law Dictionary. None that I found defined “disbursements” as meaning “distribution”, nor am I able to find any support for the statement in the majority opinion that “ ‘disbursement’ is a more general word and includes distribution”. It is not so defined in 26A C.J.S. p. 968, cited in the main opinion, or anywhere else that I can find.
Webster’s 2nd Edition, which is more apropos to our problem here since it was published in 1935 and available during testator’s lifetime, whereas Webster’s 3rd was not published until 1967, gives apportionment, allotment, dispensation, disposal, dispersion and arrangement as synonyms of distribution. It does not give disbursement as a synonym. It allots a third of a column to “distribution” and its meanings. It allots only two lines to “disbursement”.
It is much more likely that the testator, Mr. Babler, who was a careful lawyer and meticulous draftsman, with considerable probate and trust experience, considered the word “distribution” to mean, as the majority opinion concedes its general meaning to be, “the payment or delivery of assets at the termination of probate estates”, than that he considered it as a synonym for “disbursements”.
I see no significance in using the term “use and expend” in Item 15, which authorizes the trustees to make yearly expenditures on the park, as related to our problem of whether under the provisions of the will the trustees are entitled to an additional 7% on final distribution. A “use and expend” disbursement made under Item 15 as part of current annual expenditures for the maintenance and development of the park, which testator was clearly encouraging his trustees to make by allowing them a commission on all such expenditures, has no relation to whether turning the corpus over to the state at the end of 20 years is a disbursement.
. In view of the rule stated in the Buder case, it is difficult to understand how the trustees or the court could believe that testator in the present case intended the trustees to receive a commission on the corpus at termination unless he specifically spelled it out, which he certainly did not do as witness this litigation. This is because the Buder case, at 217 S.W.2d 1. c. 573 declares: “ * * * Absent a contract and absent a provision in the trust instrument fixing the basis for computing trustees’ commissions, the allowance as a trustees’ commission of a portion of corpus upon final distribution to the beneficiaries (or remaindermen) does not go as a matter of right but is a matter wholly within the discretion of the court. There could be circumstances, of course, of unusual or extraordinary character in the matter of the services rendered which would justify a court in departing from *742the general practice of allowing trustees’ commissions only out of the yearly income received and disbursed. That, however, is a question for the court to determine in each such case before it. * * *” (emphasis supplied).
The rule of the Buder case was reaffirmed in In re Franz’ Estate, 359 Mo. 362, 221 S.W.2d 739, 741-742 and in Morrison v. Asher (Mo.App.) 361 S.W.2d 844, 851. The rule was earlier applied in Kilpatrick v. Robert, 278 Mo. 257, 212 S.W. 884; Cornet v. Cornet, 269 Mo. 298, 190 S.W. 333 and In re Mays’ Estate, 197 Mo.App. 555, 196 S.W. 1039.
In the present case, the majority opinion makes mention of a custom in St. Louis to award trustees a commission on corpus on termination, saying this is “a very convincing factor” and in accord with the general rule. It is not in accord with the Missouri rule as declared in Buder and applied in the earlier cases, and I doubt if the testator, a knowledgeable lawyer, thought it was.
The majority opinion rests this custom not on the testimony of any witness in the record,- but entirely on exhibit 2, Mercantile’s Schedule of Fees, and on a concession by the state in oral argument. It seems to me the fact that Mercantile publishes a printed fee schedule is the direct opposite of custom. It shows that Mercantile is not willing to leave its trustee’s fees to custom, whatever it may be, if there is a custom, but instead specifies its fees in writing. It may be that, in order to remain competitive, we can assume that Mercantile’s fees, and to what they applied, were about the same as what the other trust companies did, but this still does not make it a matter of custom.
Mr. Weidert, who was one of the original trustees, helped Mr. Babler draft the will. Mr. Weidert was a salaried lawyer in' the employ of Mercantile Trust, so I feel sure Mr. Babler knew what the Merchantile schedule was and would have no part of it. Mr. Babler pointedly did not authorize a commission on principal when it was distributed by the trustees. Instead he provided for compensation only on disbursements. There is every reason to believe he did this for a reason and not because he somehow believed distribute and disburse meant the same thing legally.
. The majority opinion rests approval of allowance of attorneys’ fees on the proposition that since the trustees were contending they were entitled to the 7% on corpus on termination, while the state treasurer was refusing to accept the transfer of the property unless all the assets were delivered to him, “⅜ ⅜ ⅜ the trust estate could not be finally determined and the assets delivered to the State Treasurer until this question was determined by the courts. * * so, it is argued, suit had to be filed, with all the favorable consequences for the trustees.
*745The obvious solution, so that the business of operating the park could get. on, was to turn the trust estate over to the state, holding out the amount in dispute as to commissions and a reserve for attorneys’ fees. Only the trustees could arrange this, because they had possession of all the funds and property. Once this simple step is taken, the aspect of there being some endangering or impeding of the administration of the primary objective of the trust — operation, maintenance, and development of the park — vanishes.
This is actually what the parties did by stipulation made January 25, 1967, before the case was tried. When this case was tried and all through the subsequent motions and appeals, the only objective of the trustees has been for their personal gain. The transfer of the trust estate corpus had long since been made to the state and the park was being operated by the State Park Board.
Further, the record shows that the trustees had already paid themselves the $190,730 in commissions before the litigation commenced. It was not escrowed. The individual trustee has already paid income tax on her share. It was because she feared the corporate trustee was considering working out some settlement with the state on the disputed commissions that she felt she should retain separate counsel. This points up how personal to the trustees and how exclusively for their sole benefit this litigation is and has been. The trustees filed suit July 6,1966. They had earlier assured the attorney general that his letter of February 2, 1966, wherein he stated the position of the state, had been referred to their counsel and that the state would hear from them within ten days. This was in February 1966. In April 1966, the attorney general again wrote the trustees, pointing out he had heard nothing further from counsel despite the trustees’ promise of a reply within ten days.
In November 1966, the trustees wrote the state treasurer and for the first time offered to turn over the trust corpus, except for holding out the amount of the disputed commissions and a reserve for attorneys’ fees. In this letter the trustees frankly describe their pending declaratory judgment suit thus: “This suit involves the question of the trustees’ right to compensation for their services, seven percent (7%) of all disbursements of income and corpus made by them, to be divided equally between them.” That is all this case has ever been.