concurring in part and dissenting in part:
I dissent only from that portion of today’s opinion entitled “Costs and Fees Against Trustee.” I concur with the majority opinion in all other respects.
The court below ordered the trustee, Walker, to bear its own attorney fees incurred in defense of Rasmuson’s suit. The court prohibited Walker from charging the fees against the corpus of the trust. On appeal, Walker objects to the lower court’s decision on two grounds. Firstly, Walker points out that the court’s decision came sua sponte, without any prior notice, the issue having never been raised by either party. Secondly, Walker maintains that the district court was not the proper forum for adjudication of issues relating to the internal affairs of the trust. Both arguments are persuasive.
The majority’s citation to I.R.C.P. 15(b) is interesting, especially in light of the purpose of that rule. “The requirement that the unpleaded issues be tried by at least the implied consent of the parties assures that the parties have notice of the issues before the court and an opportunity to address those issues with evidence and argument.” M. K. Transport, Inc. v. Grover, 101 Idaho 345, 349, 612 P.2d 1192, 1196 (1980) (trial court committed error in basing its decision on an unpleaded issue even though there did exist some evidence in the record to support it). Indeed, resolving an issue without providing notice and an opportunity to respond is a violation of due process of law. Intermountain Gas Co. v. Idaho Public Utilities Comm’n, 97 Idaho 113, 540 P.2d 775 (1975).
There is no indication anywhere in the record that the parties had any inkling that the court would determine whether the trustee had the right to charge its attorney fees against the trust.1 It is clear that, under some circumstances, a trustee is entitled to reimbursement from the trust estate for the expenses of conducting a defense to an action commenced by a beneficiary of the trust. See, e. g., Jennings v. Murdock, 220 Kan. 182, 553 P.2d 846 (1976); Restatement of Trusts (Second) §§ 188, 244 (1959). Given the state of the record, I of course express no opinion as to the resolution of this issue. The court below, however, saw fit to do so, notwithstanding the fact that it was without the benefit of briefs, argument or evidence. For the trial court to resolve this issue without giving Walker notice and an opportunity to be heard is fundamentally unfair and a denial of due process. Intermountain Gas Co. v. Idaho Public Utilities Comm’n. supra.
The lower court’s error was compounded by the fact that it was not the proper court to decide the issue in the first place. In *103discussing the related issue of trustee withdrawal or removal, the trial court remarked, “The defendant should simply go to the Court with jurisdiction, express the wishes of both sides, and petition for withdrawal and substitution of trustee. Then, in its final order, the district court purported to order the appellant bank to “proceed to petition the Court having jurisdiction for the defendant’s withdrawal as trustee of the J. S. Hanzel Trust, and the substitution of a new trustee, all at said defendant’s cost and expense at no charge to the trust.” Since the district court recognized that it was not the proper court for deciding the question of removal of the trustee, it is difficult to understand how the court nevertheless felt that it could tell the court in the proper forum how to rule on particular items in the trustee’s final accounting on withdrawal.
The majority also seems to recognize this, observing that the principal place of trust administration is almost certainly in Utah, and not in Idaho. Application of I.C. § 15-7-203 would indicate that a Utah court is therefore the appropriate forum for settling controversies relating to the internal affairs of the trust. The lower court should have referred the attorney fees issue, along with the trustee substitution issue, to the appropriate Utah court. Sound principles of comity require that the courts of this state refrain from trying to dictate to the courts of the State of Utah, or any other state where a trust might be administered, how that court should carry out the exercise of its jurisdiction, particularly as it relates to passing upon the appropriateness of a final accounting filed by a trustee.
. It is true that Rasmuson’s complaint requested attorney fees for herself, but nowhere does it mention the matter of the trustee’s right to charge its fees against the trust. Moreover, as the majority notes Rasmuson never filed a motion for summary judgment, and thus the record is without another piece of paper which may, if properly drafted, have notified Walker that its right to reimbursement for attorney fees was at issue.