
    H. E. Danial, Adm’r, v. S. N. Fain, and S. N. Fain v. Union Presbytery et al.
    
    Tbtjstee. Compensation. Attorney’s fee. A trustee who files a bill which, although not strictly a bill of interpleader, accomplishes the same purpose without objection by the successful party, and who is not required by that party to pay the money into court, is fairly entitled to compensation if he has kept the fund loaned out on good security, but not if he has himself used the fund, and to be reimbursed any expenses incident to the trust, and to the reasonable fee of counsel for filing the bill.
    FROM JEFFERSON.
    Appeal from the Chancery Court at Dandridge. H. C. Smith, Ch.
    McFarland & Dickson and J. W. Yoe for complainant.
    J. M. Meek for defendant.
   Cooper, J.,

delivered the opinion of the court.

By the will of Alexander Blackburn a fund of about $1,100 was placed in the hands of a trustee in trust to pay the interest thereon annually to the testator’s widow during her life, and then to a trustee to be appointed by the .Union Presbytery of Jefferson county, for a supposed charitable purpose. At the death of the widow, about the 16th of May, 1877, S. N. Fain was the trustee of the fund. He had paid the interest to the widow, and was chargeable with the corpus of the fund. The complainant, H, E. Daniel, as administrator of H. H. Peck, filed the • original bill in this cause against Fain, claiming the fund under an assignment made to his intestate by Andrew Blackburn, the only heir and distributee, as well as a legatee of Alexander Blackburn. The Union Presbytery was also proposing to institute legal proceedings, when the trustee Fain, on the 16th of January, 1878, filed his bill of interpleader, or in the nature of a bill of interpleader, against all parties claiming the fund, asking for a construction of the will, that the rights of the contestants be declared, and that he be denuded of his trust. The bill is not a strict bill of interpleader, for it does not propose to pay the fund into court, nor is the oath made to the bill such as is required in such a case. The defendants answered without objections, and at the July term, 1879, an order was made consolidating the two causes by consent, and allowing Fain to pay the fund into court, and be discharged from further liability therefor, but reserving the question of his liability for the costs of the litigation. At the July term, 1880, the Union Presbytery moved that Fain’s bill be dismissed for want of the proper affidavit to it >as a bill of interpleader, and because the fund had not been paid into court, but the motion was disallowed. At the same term, the final decree was rendered declaring that the Union Presbytery was entitled to the fund, and giving a personal decree in favor of the Presbytery against Fain for the fund, unless paid into court within a given time, and referring it to the master to, ascertain and report whether Fain was entitled to any allowance for services and expenses as trustee, and permitting him in the meantime to retain $100 subject to account. After the rendition of the' decree, but at the same term, an order was made, in view of an appeal, authorizing Fain to pay the money into court, against which order Daniel, as administrator, protested. The money has not been paid in, and the question submitted is whether the complainant Fain is entitled to compensation as trustee, or other allowance. This court reversed the chancellor’s decree, and gave the fund to the complainant Daniel.

The tenant for life was liable for the compensation of the trustee and expenses of the trust during her life, and the only compensation Fain can claim since her death would be for subsequent services. No serious effort was made by the successful litigant to require the trustee to pay the money into court. He was simply allowed to pay it in, probably at his own instance. If he kept the fund loaned out on good security during this period, he would be fairly entitled to pay for his trouble, but not if he has himself used the fund. The expenses of the trust, if any, would be a proper charge. The bill, although not a strict bill of interpleader, accomplished the purpose of such a bill without objection, and an allowance should be made for counsel fees in filing the bill.

The chancellor’s decree will be modified accordingly.  