
    Frederick B. Campbell, Plaintiff, v. Samuel Barber, Mary L. B. LeLacheur and Emily C. Campbell, Each Individually and as Executors of and Trustees under the Last Will and Testament of Samuel Barber, Deceased, Defendants.
    (Supreme Court, New York Special Term,
    January, 1905.)
    Contract — Attorney employed to protect rights of testamentary trustee— Action to charge trust fund with value of services.
    An action, is maintainable in the first instance to directly charge the income of a trust fund with the value of services rendered by an attorney to a testamentary trustee in protecting her rights as trustee against the alleged improper and illegal action of the other trustees who sought to exclude her from any participation in the management and conduct of the trust, where it is alleged in the complaint, and not denied, that the defendants as such trustees are in control of the estate and in the joint receipt and possession of the rents and profits thereof, jointly discharging all charges against the estate and paying to themselves individually as sole beneficiaries the net income and that no judicial accountings are necessary or have been had.
    Action to recover the reasonable value of legal services rendered. The facts are stated in the opinion.
    Frederick B. Campbell, plaintiff, in person.
    William N. Dykman (John J. Kuhn, of counsel), for defendants Barber and LeLacheur.
   Giegerich, J.

The action is brought to recover, out of the income of the trust estate held by the defendants, the value of legal services rendered by the plaintiff in the protection, as it is claimed, of the estate from improper and illegal action on the part of two of the defendant trustees. The three defendants are coexecutors of and trustees under the will of their deceased father, and are likewise the sole beneficiaries of the trust interested in the income sought to be reached in this action for the payment of the services in. question. One of the trustees, Emily C. Campbell, the mother of the plaintiff, had differences with her sister and brother, her cotrustees, and an attempt was made by the latter to exclude her from any participation in the management and conduct of the trust affairs. It was to restore her to her rights as trustee, among other things, that the services in question were rendered. There can be no question but that the services are amply worth the $500 sued for, nor can there be any serious doubt upon the evidence presented that the services were necessary to the proper and legal administration of the trust. The only issue is whether the plaintiff can recover in the form of action here attempted, it being contended on behalf of the defendants Barber and LeLacheur that the plaintiff’s right, if any, is against the trustee who employed him, and that the estate can be charged only upon an accounting by such trustee, reliance for this proposition being placed upon O’Brien v. Jackson, 167 N. Y. 31/and the cases there cited, where it was said, at p. 33: While as between the executor and the person with whom he contracts the latter may rely on the contract, the beneficiaries are not concluded by the executor’s act, but the propriety of the charge and the liability of the estate therefor must be determined in the accounting of the executor. In an action at law against the executor the legatees and persons interested in the estate have no opportunity to be heard. To the general rule there are exceptions, and an equitable action can be maintained against the estate on behalf of a creditor in case of the fraud or insolvency of the executor, or when he is authorized to make an expenditure for the protection of the trust estate, and' he has no trust fund for the purpose. In the latter case, if unwilling to make himself personally liable, he may charge the trust estate in favor of any person who will malee the expenditure. Charges against the trust estate in such cases can be enforced only in an equitable action brought for the purpose. To that action the beneficiaries and cestuis que trusieni are necessary parties. The trust estate cannot be depleted or swept away except in an action which they may defend. The defendants were personally liable on their contract with the plaintiff, but the action cannot be changed on this appeal into one against the defendants individually.” Recognizing fully the authority of the rule as above laid down, at the same time, in view of the limitations of the rule as there stated and the reason for its existence, I conclude, under the exceptional circumstances of the present case, the action is maintainable in the first instance and directly to charge the trust fund. It is alleged in the complaint, and not denied, that “ the derfendants, as such trustees, are now in the joint control of said trust estate and in the joint receipt and possession of the rents and profits thereof. As such trustees they jointly discharge all charges against the said estate and pay to themselves individually the net income thereof. Ho judicial accountings are necessary or have been had by the defendants during the times herein mentioned.” Under such circumstances it would be illogical to the point of absurdity to require the plaintiff to bring his action against the trustee with whom he made the contract and then to relegate that trustee for her own recoupment to an action against herself and her cotrustees as trustees and as individuals for the purpose of determining the accounts stretching over a period of many years, which accounting, it is obvious from the nature of the case and from the admissions in the pleadings, is altogether unnecessary. It is also objected on behalf of the defendants Barber and LeLaeheur that if the plaintiff’s claim is maintainable at all he has an adequate remedy at law, but it is not apparent how, in any action at law, the plaintiff could, in view of the equitable rule above referred to, accomplish all that is being accomplished in this action, which really embraces all that would regularly be effected by an action at law and an action in equity. The plaintiff should, therefore, have judgment for the amount demanded, and directing that the same be paid out of the income of the trust fund, together with costs.

Judgment for plaintiff, with costs.  