Mr. Richardson devised property "to be disposed of by" his wife as she should choose, and she made the seminary her residuary legatee. The seminary contended that her will was an execution of her power of disposal. The heirs of her husband contended that her will was not an execution of the power, and that the property, as his intestate estate, went to them. Thereupon, by this hill, the administrators of Mr. and Mrs. Richardson asked a decision of the question of construction. For the purpose of giving the seminary and the heirs an opportunity to maintain their respective claims, and for the further purpose of obtaining a decision by which the claimants would be bound, they were joined as defendants. In the litigation that followed between the seminary and the heirs, the seminary prevailed. It was decided that Mrs. Richardson's will was an execution of the power, and that the property in controversy belonged to the seminary. The heirs now move that the fees of their counsel be paid by the plaintiffs. "Costs shall follow the event of every action or petition, unless otherwise directed by law or by the court. In all actions or petitions in the supreme court, costs may, on motion and good cause shown, be limited, allowed, and such security therefor ordered, as the court may deem just" G. L., c. 233, ss. 1, 2.
In compelling the claimants to submit to a decision of the question of construction, the plaintiffs performed a fiduciary duty. They were bound to settle the estates speedily, and not to wait for legal proceedings to be instituted by others. But they were not one of the contending parties, and the result was a matter of indifference to them. They have no beneficial interest in the property, and can gain nothing and lose nothing by an order granting or denying the heirs' motion for costs. The seminary was the only legatee that had any interest in the litigation with the heirs, and the only one that took any part in it. The other legatees might as well be required to pay a part of the taxable and non-taxable costs of the seminary, as to contribute to the indemnification of the heirs; and there is no more reason for taking their property to defray the expenses of either party, than for applying it to the payment of counsel fees on both sides of every other case on the docket.
A part of the property claimed by the seminary on one side and by the heirs on the other was realty, and a part was *Page 159 personalty. The realty vested in the seminary at the moment of Mrs. Richardson's death. Of the personalty, the equitable title (including the whole beneficial interest) passed to the seminary at the same time. On the question now presented, the legal, provisional title of the administrators is irrelevant. They are mere temporary, disinterested trustees, holding the personalty for the claimant to whom it has been found to belong. While the equitable title was in controversy, the personalty remained in the custody of the law, not for distribution among all claimants, or for any other misappropriation or waste, but for safe keeping and delivery to the equitable owner when it should be determined who the equitable owner was. The seminary's titles, legal and equitable, were not divested, impaired, or suspended by being unsuccessfully disputed. It being now ascertained that the seminary is and was the legal owner of the realty and the equitable owner of the personalty, and the question being whether the court shall or can convey a part of the seminary's adjudicated and indisputable title to the defeated claimants, it is not material whether the property is money, or a chattel specifically bequeathed, or a farm specifically devised, by Mr. Richardson to his wife's appointee, or whether the ownership of it, which vested in the seminary at the termination of Mrs. Richardson's life estate, was equitable only, or equitable and legal.
As corporate property may become insecure under an inadequate conception of the fact that its owners are bodies of natural persons, so the safeguards of property committed to the care of executors and administrators, and called the estates of deceased persons, may be affected by a vague notion that funds so held in trust during the process of administration do not belong to certain living heirs or legatees in the full equitable sense in which a workman's wages are his, or that the equitable title is less sacred than the legal title of other property in the possession of its absolute owners. Mr. Richardson's heirs, having done nothing either to save this fund for the owner, or to enable the owner to get it, but having merely done what they legally and properly could to get it from the owner, are entitled to no salvage out of it, and have no lien upon it for services performed in the prosecution of their invalid claim. The seminary's legacy in the administrators' hands is no more liable, in any legal sense, to be applied in payment of the heirs' expenses, than any other property of the seminary liable to be taken on execution. If the heirs' motion were granted, it would be, not because they are entitled to a portion of the seminary's legacy, but because, for taxable and non-taxable costs, they are entitled to a judgment against the seminary. It is true that an able presentation of each side of every case is a desirable mode of obtaining a correct decision. But this advantage does not justify either an exception in this particular class of cases, or a general rule that, as to counsel fees, the losing party shall prevail. *Page 160
A motion that the court convey A's property to B without A's consent can be granted only in pursuance of a constitutional law authorizing the conveyance. Upon these heirs rests the burden of showing the legality and justice of taking property from the seminary whose title is established by a final and conclusive judgment, and transferring it to the persons whose want of title is settled by the same judgment. It is not enough that such a practice prevails in other jurisdictions, American and foreign. It is necessary to produce New Hampshire authority consistent with those rights of property which are regarded here as fundamental. The legislature may leave upon each party the expense of maintaining his claim. They may allow the recovery of costs as a reparation of incidental damage suffered by the prevailing party, or as an application of some other sound theory of legal justice. At common law, a necessary expense of protecting or managing a trust fund, whether incurred by the trustee or by the beneficiary, may be charged upon the fund. Burke v. Concord Railroad, 62 N.H. 531. But the costs of the heirs in this case cannot be paid out of the seminary's property, unless, by a general rule, the prevailing party should bear the expense of an attack upon his title, or a sufficient legal reason is given for making cases of this class an exception to the contrary rule.
It is not material whether the question of construction arose upon a will, or upon a document of some other kind. In the legal character of an ambiguous will, deed, lease, note, statute, constitution, or other writing, there is nothing that requires the party prevailing on the question of its meaning to pay his adversary's counsel. If Mrs. Richardson had done by deed what she did by will, and the seminary had brought a writ of entry against the heirs, it would be held on her deed, as it was held on her will, that she intended to exercise all her right of disposal, and that the writing was an execution of her power of appointment. The seminary would recover judgment and a writ of possession for the land, and an execution for costs. The heirs would not be volunteers in the suit. They could complain, as they do now, that they were compelled to go into court and urge their view of the case, or submit to an ex parte decision; but the complaint would be unavailing in the absence of a valid law giving costs to involuntary litigants. No greater injustice would be done by rendering a judgment in that action against the plaintiff for the defendants' counsel fees, and satisfying the judgment by setting off to them on execution a part of the land given to the plaintiff by the Richardsons, than in ordering these administrators to pay the heirs' counsel out of the seminary's legacy. Between the two cases there is no distinction of law or fact that affects the merits of the present motion. If the seminary had been content to allow its legacy to remain in the plaintiffs' hands, and the plaintiffs had been content to hold it until the heirs brought an action to try the question of title, their *Page 161 motion for costs would have been denied. A legatee is entitled to the whole of his legacy when his title has been unsuccessfully disputed in a suit brought by other claimants. The Dublin Case, 41 N.H. 91, 94. And the question whether he is entitled to the whole of his property, or whether a defeated claimant is entitled to a part of it, does not depend on the time or place chosen for a determination of the controversy, or on the circumstances that induced one person rather than another to exercise the right of bringing the question of title into court for decision.
It is not material that the construction of Mrs. Richardson's will was a debatable question which both parties, acting upon the best legal advice, had good reason to litigate. The expenses of the losing party are not cast upon his adversary by the circumstance that the claim, in the prosecution of which they were incurred, was not frivolous or vexatious. Men do not generally go to law in the absence of all uncertainty and all difference of opinion as to their rights. Litigation supposes a doubt entertained by somebody, or a controversy that raises a question. And if the expenses of the losing party were payable by the other in a case apparently contestable on both sides, it could make no difference whether the litigated question was one of legal construction, sanity, identity, value, quantity, quality, of any other of the innumerable issues of law and fact that are tried and decided by referees, jurors, or other judges. Between a doubt concerning the meaning of a will or other writing, and an equal doubt on any other subject, no line can be drawn on which the court can legally assume to indemnify the losing party out of his opponent's property in one class of cases, and not in all cases that are properly contested. Whatever degree of uncertainty might be selected as the test, legal principle would demand consistency and uniformity in its application. If the court should undertake to say when a question is doubtful enough to require the prevailing party to make the other whole in the matter of costs, the same test would be applicable to all forms of action and all kinds of controversies. To single out a particular class of cases without legal cause, and say, in this class we will convey property from its owner to some other person, would be an assertion of arbitrary power at variance with our system of government.
"It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority, that where one of many parties, having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts." Trustees v. Greenough, 105 U.S. 527,532, 533. "While I agree to the decree of the court in this case, I do not agree to the opinion, so far as it is an argument in favor of a *Page 162 principle on which is founded the grossest judicial abuse of the present day, — namely, the absorption of a property or a fund which comes into the control of a court, by making allowances for attorneys' fees and other expenses, pending the litigation, payable out of the common fund, when it may be finally decided that the party who employed the attorney, or incurred the costs, never had any interest in the property or fund in litigation. This system of paying from a man's property those engaged in the effort to wrest it from him can never receive my approval." Miller, J., p. 538.
The origin of the abuse is apparent. An expense of saving a trust fund, or otherwise causing it to be legally administered, may be an expense of the trust, payable out of the fund, whether incurred by the trustee who holds the legal title, or by the beneficiary who holds the actual interest. It is sometimes a question whether an expense was incurred by an equitable owner in the protection of the property and the enforcement of the trust, or by a claimant of the equitable title in a contest with another claimant of the same title; and the distinction is not always accurately maintained between costs of administering the fund for the benefit of the owner, and costs of an effort to divert it to a claimant not known to be, or known not to be, the owner. "If a person claims as legatee, and his bill is dismissed, he will not be entitled to his costs out of the testator's estate, notwithstanding there is an ambiguity in the will which renders it necessary to apply to the court for its construction. . . . It does not seem to us that there is here any just ground to charge the expenses of this litigation upon the fund in controversy. The action is brought by the plaintiffs for the purpose of recovering a private right to which they thought themselves entitled. They have failed to satisfy the court of the correctness of their construction of the will in question, and they consequently stand in the position of mere strangers, setting up a claim which they are unable to support." The Dublin Case, 41 N.H. 91, 94.
There is no legal or equitable ground on which this case can be made an exception to the rule, that the prevailing party does not pay his adversary's taxable and non-taxable costs. The fees of the heirs' counsel were not an expense of fiduciary administration. For all purposes that are relevant on the present motion, the heirs are the losing party, and the seminary is the prevailing party, on an ordinary question of title. If the administrators should be ordered to pay the heirs' counsel out of the seminary's legacy, it would follow in all cases that the prevailing party should pay his opponent's counsel fees and other expenses, and recover nothing except what might be left of the property or damages in controversy after fully indemnifying the other side. If it had been enacted that, in cases of wills and corporations where title is contested, the court shall convey, by levy of execution or otherwise, enough of the property from the person adjudged to be the owner to the *Page 163 other claimant to indemnify him for all loss, cost, and damage resulting from his claiming what was not his, it would have been necessary to inquire how the statute could be sustained. If the seminary's title could be considered as suspended during administration or during litigation, an order granting the heirs' motion would be a violation of the statute of wills (G. L., c. 193, s. 1) and the rights of Mr. and Mrs. Richardson. A testator necessarily intends that his property shall be subject to expenses of administration, but not to the costs of an ineffectual attempt to defeat his will. The diversion of any part of the Richardson estate from the destination fixed by the testators would not be an exercise of judicial power.
Motion denied.
CLARK, J., did not sit: the others concurred.