
    Thomas A. McKennell and Another, as Copartners, Plaintiffs, v. Guaranty Trust Company of New York and Another, Defendants.
    Supreme Court, Westchester County,
    August 1, 1927.
    Trusts — trustees — .cotrustee not liable for attorney’s fees in honest contest with other trustee.
    A cotrustee against whom a proceeding is instituted for his removal based on his honest effort to have his cotrustee consent to the buying of better securities, is entitled to be paid his counsel fees in defending himself.
    Action involving liability of testamentary trustee for attorneys’ services.
    
      McKennell & Appell, for the plaintiffs,
    
      Davis, Polk, War dwell, Gardiner & Reed, for the defendants.
   Lynch, J.

The controversy between the cotrustees arose from a mutual well-intended desire to protect and benefit the estate to which they each owed a duty. It cannot be said that Van Derveer was not acting for what he honestly believed to be the interest of the estate, when he urged upon his cotrustees the purchase of better interest-bearing securities.

If his honest efforts in this regard precipitated a proceeding to remove him, he was none the less acting for the benefit of the estate in resisting his removal, even if it later might develop that the judgment of his cotrustees was better than his own. He was seemingly doing what he honestly believed wa.s his duty, and he should not be penalized by being required to personally pay attorneys, who, in good faith, represented him on such proceedings,

The plaintiffs are, therefore, awarded judgment for $500, with interest from February 28, 1927, together with costs and disbursements.  