Opinion on Petition to Eehear
Mr. Special Justice W. J. Smith.Honorable C. M. Murphy, who is joined by Judge Joseph W. Evans, filed their petition for a rehearing in which they contend that there was a concurrent finding of fact by the Chancellor and Court of Appeals which was binding on this Court. To support their contention petitioners quote only parts of what was said by the two lower courts and cite a number of the same cases referred to in briefs on the original hearing, and in addition cite a number of cases from other jurisdictions to sustain their contention, evidently overlooking the fact that the Court of Appeals in its published opinion (58 Tenn.App. 362, 430 S.W.2d 787), held that “both Mrs. McKown and Talfnadge E. Mugrage contended that the trust is void and unenforceable; but secondarily, each of them contends that she or he, as the case may be, is therefore entitled to inherit all of the residuary estate of James H. *340Tharp.” * * * The Court of Appeals further held that neither Mrs. McKown nor Talmage E. Mugrage has any interest in the estate of James H. Tharp, deceased. The decision of the Court in that case is the law of the case. City of Bristol v. Bostwich, 146 Tenn. 205, 240 S.W. 774.
In disposing of the application of Petitioner for the allowance of fees and expenses the Chancellor made this observation:
“The Court: I might state at the outset that I am convinced that Mr. Evans and Mr. Murphy have done a thorough, capable, splendid job. I feel I am in the position expressed in that Southern case, to the effect that I am not allowed to award a fee, and it’s a rule of law and not an order of the Court. You all may take it from there Mr. Murphy.”
After counsel and the Chancellor discussed quite a number of cases, the Court said:
“The Court: I am more concerned with what my right is under the law, and I mean with reference to services and you Mr. Murphy have performed.
“I have no hesitancy in saying that the efforts that went by both of you into this lawsuit meant a great deal to the orphanage’s disposition of it. Both of you were extremely helpful, and the briefs that were submitted were well done, and you represented the interest solicited for in a most able manner. Your services were not only a benefit to your client, but indirectly were helpful in investigating the background in permitting all of the people to be afforded. I don’t doubt that.”
And again, the Chancellor said:
*341“I can echo the expression made by the solicitor for the administrator. It’s no pleasant task for me to deny fees, particularly in this case to the two attorneys who I know have devoted considerable time and energy and whose efforts in the case were most credible. But I just feel I have not the authority in the face of the objection by the administrator and even absent that objection.
“In the light of the cases that I have mentioned, I feel that Vanderbilt against Mitchell is clearly distinguished in the Gilpin against Burrage case, and I think in the Eppinger case Judge Swepston has reiterated the position that I have no authority to take from the estate, compensation for the benefit of solicitors who represented private individuals whose efforts, if successful, would have destroyed the trust rather than enhanced or improved it.
“Now, I don’t enjoy this job, but that is my conclusion. I know not how to escape it. Therefore, the application of the solicitors for Mr. Mugrage and for the sister is denied.” * * *
The Court of Appeals in its opinion stated:
“We are of the opinion the Chancellor misapplied the rule as heretofore stated. A review of the cases established the controlling point is not whether the party was in a position for the will or against the will; the controlling point is whether the services rendered inured to the benefit of the entire estate. In this case the estate could not be administered, apparently a trustee could not be appointed, the widow was at a loss as to her position, and the administrator C.T.A. required construction of the will and other instruments. The purpose of the suit was for the benefit of the entire estate *342in that same was necessary before anyone conld act with any degree of certainty. The result of the suit was that the rights and interest of all parties were settled. The suit settled and determined legal questions which have confronted any trustee who attempted to administer the trust. The suit also settled many legal questions which faced the administrator C.T.A.
“Under this situation we conclude that the services rendered by attorneys representing defendants to the bill brought by the administrator C.T.A. were of value to the entire estate. They represented one side of an issue which had to be determined before the estate could be administered.”
The quotations of the Chancellor by petitioners are taken out of their context. If the whole remarks of the Chancellor are taken into consideration there is really no concurrent finding of fact by the Court of Appeals and the Chancellor. But, be that as it may, it is the duty of this Court to apply the law to the facts as they appear in the record.
The Court of Appeals held “the Chancellor misapplied the rule heretofore stated”, (referring to cases cited in its opinion). A question of law is thus presented, that is, whether the Chancellor or the Court of Appeals “misapplied the rule. ’ ’
We, in our research made independently of the cases cited in petitioner’s brief, have been unable to find any decision of this Court holding that where parties, who had no interest in the estate or trust, and sought to destroy the trust, were entitled to have fees for such services paid from the estate or trust funds.
*343The petition to rehear is denied. The costs are adjudged against petitioners.
Dyer, Chief Justice, Creson, and McCanless, Justices, and Jenkins, Special Justice, concur.