I agree with the learned referee, except in relation to the expenses incurred by the trustees in defending an action brought by the *19plaintiff- to declare the trust under which the defendants, the executors of Christian Friedrich Theodor Stein way, deceased, held this property, invalid. The clause of the will establishing this trust provided that one-fourth of the, shares of the testator in the Steinway & Sons’ corporation was given to the trustees for the benefit of the three sons of the testator’s brother Charles Steinway, namely, Henry W. T. Steinway, plaintiff; Charles H. Steinway and Frederick T. Stein way, of the city of Hew York, and there was to be paid to them in equal proportions an annual sum representing an income of five .per centum upon said shares until the 1st day of January, 1904, when the shares were to be divided between the three beneficiaries. The will then provided: “ The excess of the annual income of such shares in the Steinway & Sons’ corporation, over and above said five per centum, shall be retained by my executors and trustees hereinafter named, as their compensation for the management of such shares, and such excess shall be annually divided fro rata among them or their successors until January 1, 1904.” This will was admitted to probate on the 24th day of Hay, 1889. The referee found that in the month of Hay, 1893,, the plaintiff brought an action in the Supreme Court of this State against the defendant trustees and others, for the purpose of having declared void the 33d clause of the will to which attention has been called, which clause created the trust involved in this action. This action was decided in favor of the plaintiff at the Special Term and said trust was declared invalid; bpt this determination was reversed by the Appellate Division, and the complaint dismissed (24 App. Div. 104), which was affirmed by the Court of Appeals, that court holding that the trust was valid (163 N. Y. 183).
The referee further found that the amount paid by the trustees in defending said suit for counsel fees and expenses amounted to the sum of $39,719.11, and the only question about which I have any doubt is as to by whom this sum should be paid. It is conceded that it was the duty of the trustees to defend- this trust; and it is clear that they were entitled to be reimbursed their reasonable and proper expenses in so doing. I think this amount should be paid-out of the corpus of the trust property. By the agreed statement of facts upon which the question was submitted to the referee, it is stated that on January 2, 1904, the trusts under the will of C. F. *20Theodor Steinway having come to an end, the trustees distributed -and transferred the shares forming the principal of the trust funds, and transferred to the plaintiff, 333 .shares of the capital stock of Stein way & Sons, of which'he is now and ever since has been the owner and holder; that the trustees have in their hands the amount' due to the plaintiff for his share of the five per cent on the capital s.tock of the Steinway Company."corporation, they having deducted therefrom the sum of $3,308.93 which was deducted and charged to- the plaintiff as his proportionate share of" their expenses in defending said suit ■ brought' by the plaintiff to have the trust declared invalid, and that the total amount, paid by said trustees in defending said suit, for counsel fees and expenses, amounted to the sum. of $39,719.11. Before this stipulation was presented to the referee, the question as to the liability for the expenses of this litigation was submitted to him, the parties stipulating that the amount of the excess of income from the trust property, over and above the five per cfent paid to the beneficiaries was more than sufficient to- pay the expenses incurred in defending the attack upon the validity of the trust. The learned referee held that the expense of this litigation was not chargeable to the income to which the beneficiaries were entitled, but was chargeable against the balance of" the .income - remaining.in the hands of the trustees after the payment of the five per cent to the beneficiaries. In the referee’s opinion it is stated • ■ that it was admitted on both sides that the reimbursement for these expenses is to be paid out of the income, and" not out of the principal of the trust property. I do not find any such Stipulation in 'the agreed statement of facts. It was agreed in the stip'ulation that the, amount that was due to the plaintiff upon the termination of the trust was something over $12,000 for income and 333 shares of this stock as principal. The. executors, "apparently with the "consent of all the beneficiaries, with the exception of the plaintiff, had deducted the amount paid in defending the action attacking the trust, from the five per -cent income to which the. beneficiaries were entitled. The- plaintiff- had refused to receive this income,, and it remained in the.hands of the trustees. At the termination of the trust they then" delivered to him the stock of the Steinway corporation, but had retained in their hands' the income. T think it clear that these expenses were not to be paid put of the amount/*21received by the trustees under the will as the compensation for the management of these shares. If the testator had made no provision as to the compensation of the trustees, they would have been entitled to receive the legal fees which are allowed to trustees for the management of the trust. (See Code Civ. Proc. §§ 2730, 2802.) Under no circumstances would the necessary expenses of defending the trust be payable out of such compensation. In lieu of the compensation fixed by law for trustees, the testator in his will provided for their compensation; and the trustees having accepted the trust, they were confined to the compensation fixed by the will in lieu of the fees allowed by law for their services as trustees. If this stock which was the sole property of the trust estate had paid five per cent or less as dividends during the trust, the trustees would have received nothing for their services. They were bound to defend the trust; bound to retain lawyers and to pay the necessary disbursements, and upon no principle is this expense, which it was their duty to incur for the protection of the tiyist, to be paid out of the compensation that the testator expressly directed that they should receive- for their management of the trust. If these dividends had equaled five per cent on the stock during the term of the trust, and no more, certainly the executors would not have been required themselves to pay the expense of defending the trust. The fact that the dividends exceeded five per cent on the stock so that the executors were paid for their services in managing the property as contemplated by the testator, is no reason why this compensation which he intended should be paid to them for such services, should be reduced because of the proper performance of the duties imposed upon them as trustees. The parties having stipulated that the expenses of this litigation should be borne either by the beneficiaries or' the trustees, as between the beneficiaries and the trustees, I think the beneficiaries should pay the expenses. The question as to the amount of the compensation that the trustees actually received is entirely immaterial. If the views of the learned referee are to prevail, they were bound to défend the trust and to incur the expense necessary for that-purpose. Yet, if there had been no income applicable to the payment pf their compensation, they would under this ruling have been required to pay them this amount personally. As I look at it, it could make no possible dif*22f eren ce whaf the dividends declared upon these bonds were during the period. The beneficiaries were the ones-to be benefited by, the sendees performed by the trustees, .and as between the.beneficiaries and the trustees, upon-the interest of the beneficiaries in the trust property must fall the expense of maintaining the trust.' The testator expressly provided that the excess of income was to be paid to the trustees “ as their compensation for the management of such shares, and 'such excess shall be annually divided pro rata among them or their successors until January 1, 1904.” There Was to be thus an annual division of the excess >when the amount divided would belong to the trustees, and it seems to me that it would be contrary to this declared intention of the testator that tins compensation which was to be paid to them. for their services in the management, .of the trust should be depleted by the necessary expenses incurred by them in the performance of their trust.
I think the judgment appealed from should be modified so that as between the trustees and the plaintiff, the interest of the plaintiff in the trust was chargeable -with the proportion of the expense of the litigation, with costs to the trustees against the plaintiff.
O’Brien, P. J., McLaughlin and Clarke, JJ., concurred.