
    BORDA v. BORDA
    San Juan,
    Equity,
    No. 990.
    As to Attorneys’ Fees.
    Trustee — Attorneys’ Fees.
    A trustee can tie allowed the actual attorney’s fees paid for the benefit of the estate; and when it is not clear whether the services are rendered to him individually or to the estate, he will not be reimbursed.
    Opinion filed December 1, 1917.
    
      Mr. Frank Martinez for plaintiffs.
    
      Mr. H. G. Molina for defendant.
   HamiltoN, Judge,

delivered the following opinion:

The merits of this case have been disposed of. The evidence developed that all three parties own a sugar plantation known as the Hacienda Esperanza, and that from force of circumstances the defendant took or remained in charge and administered it for the joint account. He is a man of large business interests otherwise. The result is that some things have been done for the account of the estate and some things have been done to' protect bis individual interest, in tbe estate. Tbe accounts be bas kept bave not always distinguished between these two objects, and yet tbe distinction is essential to tbe consideration of bis accounts. Particularly is it difficult in regard to tbe matter of attorneys’ fees. Tbe joint owners unfortunately differed as to many things, and there bas been litigation between them. . Whatever legal charges can be shown to bave been'expended by tbe defendant as quasi trastee for tbe benefit of tbe estate should be allowed him and charged against tbe estate; whatever be expended in protecting bis individual interests against tbe claims of bis two brothers is bis individual matter, and must be borne by him.

It appears that be bad dealings with tbe Plazuela Sugar Company. They bad already a contract for handling tbe sugar, and defendant succeeded in having them raise tbe price.Everything, attorneys’ fees and otherwise, connected with this, was for tbe joint account, and should be allowed. He bad also litigation with them growing out of tbe fact that bis two brothers interfered with tbe management of -tbe property and endeavored to bave payments made to each of them by Plaz-uela, instead of to- him as administrator. In this litigation be was successful; that is to say, tbe litigation was settled out of court and dismissed. Whatever appertains to this should be allowed him, as it was conducted for tbe benefit of tbe estate, and was not successfully impugned. On tbe other band, differences between tbe parties seem to bave led to an arbitration and compromise, which tbe attorneys on each side endeavored to carry out. It cannot be said that bis expenses on this behalf were for tbe benefit of tbe estate, and tbe defendant should bear whatever strictly arises from this. Furthermore> if there is doubt as to any item, it must be resolved against tbe trustee. There may be no actual delinquency, but it is tbe duty of tbe trustee, if not to keep bis personal accounts separate, at least to bring convincing evidence of wbat was done for tbe estate benefit. If, by accident or otherwise, be does not do tbis, be, and not tbe estate, must lose.

It was previously ordered by tbe court that tbis matter of attorney’s fees should be referred to a master, but by consent of parties tbe matter has been taken up before tbe court, and a decree will now be formulated. Tbis saves tbe time and expense of tbe execution of tbe reference and exceptions to tbe report of tbe master.

In tbe opinion previously filed it was held that, of tbe $4,110 claimed by tbe defendant, tbe sum of $110 was properly expended by him in tbe management of tbe Hacienda Esperanza, and should be reimbursed him. Tbe rest of tbe charge was left open for further proof.

Upon tbe evidence submitted on tbe bearing it seems that there were two sums, of $2,000 each paid by tbe defendant as attorneys’ fees in tbis behalf, — the one to Muñoz Morales and tbe other to II. G. Molina, both attorneys practising in this’ court. In neither instance was tbe bill or receipt itemized so as to distinguish wbat it covered. Mr. Muñoz Morales testified that bis bill covered three sets of services; First, those connected with tbe differences which bad arisen with tbe Plaz uela Sugar Company in connection with cane contracts, particularly tbe percentage to be paid by tbe factory. Tbis would be for tbe account of tbe Hacienda, and should be reimbursed to tbe defendant, trustee in tbe premises. No basis, however, is afforded by Mr. Muñoz Morales for calculating wbat proportion of the $2,000 should be allotted to this division of the service. It seems to have resulted, however, in the increase of a I cent or more per hundred pounds, and benefited the estate perhaps $17,000. No fee bill has been submitted; but there is a general analogy to the 5 per cent allowed for a fund brought into court. This fund was not brought into court, but the charge for obtaining it is. Considering the protracted nature of the negotiations and their favorable result, it could not be said that $1,000 would be excessive. Mr.. Muñoz Morales testified that the second division of the fee related to the suit of the plaintiffs against the defendant in the local court of Areeibo seeking to have- him superseded by a judicial administrator. It seems that in this suit he was successful; that is to say, that the suit was withdrawn. This .woitM be a proceeding against him as trustee successfully re-' sisted by him, and whether the suit was brought by the- co^ owners or by outsiders would not change the nature of the transaction. He should be allowed reimbursement of proper counsel fees for this service. As to amount, here again is alack of evidence, but, considering the value of the property involved rented soon for $37,000, it could not be said that about $1,000 would be excessive for this service. The third division of the service of Mr. Muñoz Morales was with regard' to a compromise between the brothers, and he adds, “Also in' connection with the interest of the Esperanza estate.” This is' doubtfully expressed, and, if resolved against the proponent, all the $2,000 cannot be allowed for the first two services, inasmuch as part was for the third.

On the other hand, the Molina services came after those of Muñoz Morales, and seem to be mainly connected with an attempt to harmonize tbe conflicting interests of the brothers, each side being represented by counsel. Defendant seems to have consulted Molina in all matters, and something may be allowed at least as a retainer for the estate. Mr. Molina seems to have earnestly striven to increase the size of the rent proposed to be paid for the property, after renting had been agreed upon. If this stood alone, there should be some reimbursement for the fee paid to Molina; but, on the other hand, Mr. Martinez, representing the plaintiffs, seems to have been working to the same end. .If Mx*. Martinez had secured a raise in the bid it is difficult to see how this could have been charged against the estate, for he certainly was representing the plaintiffs only. Mr. Molina apparently did secure such a raise in the absence of Mr. Martinez; how, on principle therefore, can this be allowed to the other owner as against the estate? This last owner happened to be the trustee of .the estate, but it was not to him as trustee that this service of attorney was rendered. It was to him as co-owner. The rent •secured goes to the owners as such, not to the trustee.

It would seem, therefore, on the whole that the $4,000 can ■fairly be divided, half being chargeable to the estate and half ¡bprne by the defendant as personal services to him. This will effect substantial justice. A decree will be entered accoi’d-ingly, allowing defendant $2,110 of the amount claimed in the account.

It is so ordered.  