Opinion
April 15, 1943. —
May 18, 1943.
APPEAL from an order of the county court of Milwaukee county: L. L. DARLING, Judge, Presiding. Reversed.
Bernard F. Mathiowetz, in pro. per., for the appellant.
For the respondents there was a brief by Arthur K. Hellermann, in pro. per., attorney, and Bernard Soref of counsel, and oral argument by Mr. Joseph P. Brazy and Mr. Hellermann, all of Milwaukee.
Proceedings commenced June 4, 1942, by an order to show cause issued to Bernard F. Mathiowetz, trustee, and based on the affidavit of Arthur K. Hellermann, who was seeking to recover for services rendered to the beneficiary of the trust. From the order authorizing and directing the payment of the fees, the trustee appeals.
Appellant is the trustee of a trust set up in the will of Katie Razall "for the support, maintenance, proper care and medical attendance" of testatrix's son Harry. The trustee was to use the net income for these purposes "in such sums and at such times as [he] may deem most advisable." It was specifically provided that none of the income from said trust should go to the divorced wife of the son.
The son was in default on his alimony payments and was cited for contempt and adjudged in contempt. Respondent was retained by the son as his attorney to defend him in the contempt proceedings and to appeal from the adjudication. There is no dispute on the fact that respondent rendered legal services worth the $500 allowed by the lower court. The trustee resists payment on the grounds that such payment is not permitted by the terms of the trust; that the payment is within the discretion of the trustee, and that a court will only interfere if there has been an abuse of discretion; and that respondent can only recover if he has a contract with the trustee.
The question involved in this appeal is whether the county court erred in overruling the trustee's contention that the respondent's claim for fees for services rendered to the beneficiary of the trust did not come within the terms of the trust. The services consisted of defending the beneficiary in proceedings in which he was found guilty of contempt for failure to pay alimony, and was sentenced to four months in the house of correction, which sentence was suspended pending an appeal in which respondent is also participating. That the beneficiary is entitled to be defended in an action of this sort under the terms of the trust which provides for his "proper care" seems clear. Perusal of the will setting up the trust shows that the primary intent of the testatrix was to provide for her son, the beneficiary. She provided that the whole of the corpus could be used if necessary for his care. It is evident that she chose the trust device for the sole purpose of keeping her property out of the hands of the divorced wife of her son. Except for that desire, she intended her son to be taken care of generously, and the very narrow construction of "proper care" so as to exclude his defense in a court proceeding so as to keep him out of jail is certainly not warranted.
It is also clear, however, that the beneficiary cannot go out and hire his own attorney with no notice to the trustee and thus impose the obligation to pay on the trustee. He must first request help from the trustee. Until he does, there is no basis for a claim against the trust estate and neither is there any basis for interference by the court. Sec. 187, Restatement, 1 Trusts, provides:
"Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion."
Until the trustee has refused assistance to the beneficiary there can be no question of an abuse of discretion. The record is not clear as to whether a demand was made on the trustee, and if so, when it was made. The case must therefore be remanded to the county court for further proceedings.
By the Court. — Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.