concurring specially.
There are five assignments of error, but: the brief filed in this court on behalf of the-appellant presents for our consideration: the sole question as to whether or not the trial court erred to a reversal in awarding-attorneys’ fees in any amount for the attorneys who represented the complainants, in the so-called Henderson Will Cases. See Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So.2d 835; Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 61 So.2d 817.
In Tumlin v. Troy Bank & Trust Co., supra, the trial court dismissed the complainants’ bill after sustaining demurrer thereto and taxed the complainants with, the costs. From that decree the complainants appealed to this court. On original' submission a decree was entered in this, court affirming the decree of the trial court in all respects. Application for rehearing; was overruled, but only after all of the Justices of this court who participated in-the case concurred in ordering that the decree entered on original submission be-modified “so that all the costs which have-accrued in this case be taxed against Troy-Bank & Trust Company, as trustee.” A, decree was forthwith entered in this court: in accordance with that order.
*439Our decree taxing the costs against the trustee did not purport to include attorneys’ fees and it was not a directive to the trial court to tax such fees as a part of the costs in the case.
But the fact that we did see fit to tax the costs against the successful party in this litigation, although without doubt the unsuccessful parties had as their sole objective the destruction of the charitable trust provisions in Governor Henderson’s will, is a factor which, in my opinion, has considerable bearing on the question of instant concern.
The taxation of costs in equity causes is governed by Equity Rule 112, Code 1940, Title 7, Appendix, which in pertinent part reads: “Costs will be imposed by the court ■or judge having jurisdiction at such times during the litigation as he deems proper, ■subject to correction for improper exercise ■of his discretion, and may be apportioned .by him between the parties * *
In Dozier v. Payne, 244 Ala. 476, 477, 14 So.2d 376, 377, Mr. Justice Bouldin, writing for the court, said:
“This appeal is to review the decree of the court below taxing the successful complainant in equity with .all the costs of suit, amounting to .$29.25. The taxation of costs in equity causes is governed by Equity Rule 112, Code 1940, Tit. 7, Appendix, which, in pertinent part, reads: ‘Costs will be imposed by the court or judge having jurisdiction at such times during the litigation as he deems proper, subject to correction for improper exercise of his discretion, and may be apportioned hy him between the parties * * *.’
“This rule needs no elaboration. It follows the long established rule in equity vesting in the chancellor a discretion in the taxation of costs; but, says the rule, ‘subject to correction for improper exercise of his discretion.’ An ‘improper’ exercise of discretion appears when the record, after indulging all fair intendments in favor of the ruling, discloses the taxation of costs was unjust and unfair. Otherwise the action of the trial court should not be disturbed.
“The general rule at law, usually followed in equity, is to award the costs in favor of and not against the successful party in the suit. As a rule this is just. * * * ”
So our action in taxing the trustee, the successful party, with all of the costs of the litigation, thereby reversing the action of the trial court in that regard, can be justified only on the ground that we were of the opinion that after indulging all fair intendments in favor of the trial court’s ruling relative to the taxation of costs, we concluded that such ruling was unjust and unfair. That conclusion was based unquestionably on our belief that the legality of the charitable trust provisions of the will was not free from doubt and that a judicial determination that those provisions were valid redounded to the benefit of the trust estate, and for that reason it should bear the costs of the litigation, irrespective of the fact that the litigation was conceived and prosecuted in an atmosphere entirely antagonistic to the maintenance of the charitable trusts.
In view of the position taken by all of the participating Justices relative to the taxation of costs, we are not inclined to hold that the trial court erred in decreeing that fees of the attorneys representing the original complainants be paid out of the trust estate. Therefore, we concur in the conclusion reached in the opinion prepared for the court by Mr. Justice MAYFIELD, but on that ground alone. We do not wish to concur with all that is said in that opinion for the reason that we feel that, whether intended or not, the effect of that opinion may be to override many decisions of this court of long standing.