The only questions as to which the plaintiff in this bill asks the instructions of the court, and the only ones therefore which can be decided in this suit, are, 1st. Whether the particular legacies should be paid in full, with interest, and without deduction for taxes; and, 2d. Whether the expenses of the parties to the suit should be charged to the particular legacies, or to the income, or to the capital, of the residuary portion of the estate.
The terms of the agreement of compromise clearly require that the legacies should be paid in full, with interest at the rate of six per cent., and without any deduction for taxes. The counsel for Mr. and Mrs. Green admitted at the argument that this was so, and that the first alternative of her claim, as stated in the bill and admitted in her answer, was untenable. The other alternative of that claim, namely, that the taxes should be paid out of the principal, and not out of the income, of the estate, is not presented by this bill, and has no bearing upon the disposition of this case, either as to the merits or as to the costs.
The question which this bill is brought to determine does not arise out of any ambiguity in the will, nor affect the capital of the estate. All the expenses of the present litigation have been occasioned by the conduct of Mrs. Green, who, knowing all the facts, made a claim which had no legal or equitable foundation, and which was inconsistent with the express terms of her own written agreement, and which her counsel, very properly, do not now attempt to support. If she had not made this claim, but had only asserted that the taxes should be paid out of the capital, and not out of the income of the estate, this suit would not have been necessary for the protection of the administrator or the ascertainment of the rights of the other parties in the matters
Marston Grapo, for Mrs. Green and her husband. Stetson, for the ultimate beneficiaries of the residuary fund.dow before us. The costs and expenses of all parties to this suit must therefore be borne by and paid out of her income of the residue. The case falls within the rule by which courts of equity impose the costs of unnecessary litigation upon the party who has caused it. Getman v. Beardsley, 2 Johns. Ch. 274. Macartney v. Graham, 2 Russ. & Myl. 353. Meader v. McCready, 1 Molloy, 119.
Decree accordingly.
The second case was a bill in equity, also filed October 4, 1871, by the trustees of the residuary fund under the will of Miss Howland, against Mrs. Green and her husband, praying for instructions whether the United States income tax of $15,570.25, and the local taxes of $59,620.82, described in the bill in the first case, and also a United States legacy tax of $14,628.14, assessed against the administrator, and paid by him in July 1870 under protest, upon the residuary gift to Mrs. Green, which the assessor computed to be equivalent to a cash legacy of $731,407, were chargeable against the capital or the income of the residuary fund in their hands; and also against which of the two the costs and „ expenses of this suit, and of the suit in this court referred to in the bill in the first case as a suit to establish the so called compromise and supplement, were chargeable. All the allegations of the bill which are material to this report were repetitions of allegations in the bill in the first case. Mrs. Green and her husband answered, admitting the allegations of the plaintiffs, and praying rhat they might receive the desired instructions; and the case was reserved by Colt, J., on the bill and answer, for the determination of the full court, and argued at Boston in January 1872.
Gray, J.This bill directly presents for our decision the question whether the amount of the taxes which have been paid by the executor of the will of Miss Howland, or by his successor, the administrator de bonis non, to the assessor of the internal revenue of the United States, and to the cities of New Bedford and Providence under the laws of this Commonwealth and of the State of Rhode Island, and which to the extent thereof have dimin*284ished the trust fund received by the plaintiffs as trustees under the will, should be charged to the capital of the estate, or to the income or earnings thereof payable to Mrs. Green.
This question is conclusively answered by the terms of the compromise, agreed on between the parties, and affirmed by the decree of this court at October term 1870.
By the original agreement of compromise, the administrator de bonis non was to pay all the particular legacies in full, with interest at the rate of six per cent, annually from the death of the testatrix; and the plaintiffs as trustees under the will were to take the assets remaining after payment thereof and of the debts and expenses of administration, and divide them into two parts, the first of which should consist of the earnings of the estate since the death of the testatrix and be accounted for to Mrs. Green and her legal representatives, and the second should consist of the balance of such assets and constitute the principal of the trust fund to be retained and kept by them under the provisions of the will. By the supplemental explanatory agreement, it is declared that the first part “ is to consist, not of gross ear ings, but of earnings less interest on legacies as aforesaid, and, so constituted and ascertained by the trustees, shall, under the provisions of the trust, be accounted for by said trustees to said Hetty H. Green and her legal representatives.” We have already decided, upon the bill filed by the administrator for instructions upon that point, that by the terms of the compromise the particular legacies must be paid in full, without any deduction whatever for taxes. Mandell v. Grreen, ante, 277. And we are of opinion that the express provisions of the compromise, as clearly defined by the supplemental agreement, requiring the trustees to account to Mrs. Green and her legal representatives for the whole earnings of the estate “ less interest on legacies as aforesaid,” with equal clearness preclude the inference that any additional deduction is to be made from those earnings on account of taxes assessed on the estate or on any interest therein and paid by the administrator before transferring the assets to the trustees. The amount of all such taxes must therefore be charged to the balance of the assets received by them, constituting the second part, or principal, of the trust fund.
*285If those taxes were all lawfully assessed and collected, they will so far diminish the principal of the trust fund. If any of them were unlawfully exacted, and should hereafter be recovered back, they will constitute part of that principal. But the question whether they were lawfully or unlawfully assessed and collected, in whole or in part, cannot affect the right of Mrs. Green to receive the whole amount of the earnings to which by the terms of the compromise she is entitled, and need not therefore be further considered.
The twelfth article of the will relates only to taxes and charges laid upon the estate after it has come into the hands of the trustees, and has no application to taxes previously assessed and paid.
The suit in equity to confirm the agreements of compromise concerned the whole estate of the testatrix, and the costs thereof, as well as those of the present suit, like the ordinary expenses of administration, must be borne by the principal fund.
Decree accordingly.