Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1898-01-12

and to pay over the net proceeds to the widow
and son in the proportions stated, and to event
ually 1t the death of the widow and son, con-
vey the title to the City OF WATERFOWL in trust
for the purpose defined il the Will.
there held that the costs OF the nugatlOn
resulting in the construction OF the Will Dy the
supreme court and OF an allowance fol attor-
news fees directed by the supreme court 10 DC
made out OF the estate We're properly EXPENS-
ES OF ADMINISTRATION and not eA penSeS OF ad-
mini STEERING the trust. I further held that the
income from the trust estate Oequeathed IN part
to the widow in lieu of dover was not SUBJECT
to he payment of the debts and expenses or
administration, but that the same must be
paid out OF he genera estate of said deceased;
that the provisions made by the Will, or the eS-
tate appropr ated, not being sufficient to pay
the dtb S and expenses OF administration,
''such part OF the estate real or personal, as
shall not have been disposed OF by tie VIII, II
any, shall be first appropriated as provided by
law for that purpose" under section 5oo3 OF the
revised statutes; that, the devise 10 the city OF
the estates in remainder in the so acre ana ~
acre tracts having failed those two eS' ates re-
malt UNDISPOSSD OF by the eStatOr and
should first be sold and the proceeds applied
TO the payment Of the charges indicated. L
further held that the homestead being exempt
ed by the statute, could not be sold for the pur-
pose of applying the proceeds to the payment
of debts and expenses OF administration. And
when subsequently l granted the order OF Ii
cense upon another application 1t was under
the power granted by the VIII authorizing the
trustees to sell and re-lnveSt any part of the
trust estate, and, without directing the dlspo-
the directions to hold the proceeds until the
further order Of the court.
About that timesapplication was made to this
court to Tx the CoS,s and dlsbufSe ments OF all
parties in the supreme and circuit courts and
to make such allowance for counsel fees as Was
just, pursuant to the direction OF the supreme
court 1t was then conceded by all the parties
that was not TO fix the value Of the respective
attorneys services as between themselves and
their clients, but was, on the contrary, requlr-
ed to fix the sum which justly the estate should
contrib butte towards he payment OF these serV1-
ceS. 1 conceded with that construction OF the
language of the supreme court, and in making
the allowance TO respective parties for counsel
fees and referring To the contentious or tue
parties. stated sit that be the meaning OF the
direction, and l am inclined TO think 1t is, many
OF the ordinary elements that go TO TX the COM
penSatiOn between client and attorney, Such as
the extent of the responsibility assumed and
value OF the result accomplished, are only IN
cidentaliy 10 be considered that is, SD far as
they go to show The ability required and en-
ployed in the performances of the services IN
question. In other words, the estate does not
sustain he relation to the attorneys that d
client does and should not be held 10 pay more
than equally competent and reliable attorneys
could have been employed or under the dlrec-
ton of the Court ii such were permitted, TO do
the necessary work in obtaining final con-
strucJion of the Will 1t is obvious that he es-
tale is not benefited by the result, as 1t Is al
fected equally by the favorable and unfayora-
BILE parts of the final decision; it is only the
certainty of its status which IS OF dement, 10 II .
For his II should. IN justice be helu To pay What
the labor and skill Is reasonably worth, and
leave the parties who may have been benefited
to compensate their attorneys in proportion TO
the value, If they please, OF the results accom-
pl she'd or according to their contract, or 9th
erWiSe."
refer to this for the reason that the object
ing citizens may understand why the fees al
lowed The respective counsel out OF the estate
were less than they may be entitled 10 receive
from their clients 1t appears that after the
entry of The order OF This Court, liking an al
lOWance TO the parties for attorneys fees an
appeal was taken to the circuit court ana that
about that time an agreement was entered into
between the executors, the City OF WaiertoWn
and Eliza G.. Cole and Oscar A. Cole By which
it believed a cessation of all litigation in
relation TO this estate might be accomplished.
he common council OF the City of Watertown
appointed committees OF men OF known ability
and Integrity to investigate the whole situation
and upon receiving their report and recon-
mendation authorized the execution OF the
agreement. Courts naturally favor settle
mentS, and Court will reluctantly disturb an
agreement o. settlement having IN view the
discrimination of litigation. There can be no
doubt that the representatives of the City OF
WatertoWn have acted in the utmost good
faith in this matter and with the earnest desire
to end litigation. The City of WATERFOWL is,
however, not in its corporate capacity the
beneficiary of this trust but itself stands in the
nature of d trustee to receive the conveyance
OF the property in question upon the death Of
Eliza G. Cole aud Oscar A. Cole, IN TRUST for
the purposes mentioned in The will. The gift
to the city, says Justice WinSlOW, sis charitable
in It's nature and the true benehclarleS are
the citizens of Watertown. The language of
Justice Winslow leaves no doubt upon this
question, and it vas IN this view that L over
ruled the objections of the executors to the ap-
pearance OF Mr. Mulberger, ct al. and to their
right to object to the allowance OF the account
II follows that whenever II Is claimed that 1t is
attempted to divert any part OF this trust eS-
tate from the legitimate purposes for which it
was given, citizens OF atertown may invoke
the power OF The Court to prevent it. The
question therefore a'iSeS do The city authori-
ties by this agreement authorize the diversion
OF any part OF the trust estate from its proper
and must all TO accomplish the purpose OF the
agreement. /. e., ending litigation. 1t there
fore becomes Important to ascertain whether
in executing the agreement in question The cl5y
aul hOrltl6S have ac,ed w1thi4 or beyond the
power inveS ed IN hem by the law. The agree
ment provides substantially as follows That
the proceeds of the sale of the homestead
m1gnC be used 10y the executors and trustees TO
REIN burSe themselves for payments made by
them for funeral expenses OF the deceased
and for debtS and taxes due and owing by John
W. Cole at the time of his deceaSe, and for
money expended for contracts for improve
mentS the trust estate already entered into
by the said John w. Cole at the time of his
death, or for permanent improvements already
made or which thereafter might be made upon
the trust estate, but not TO exceed in any event
the sum for which the homestead might be
SOld' In consideration OF this, the executors
and trustees, ana Eliza (. Cole and Oscar A
Cole agree that they will pay all the remain
ing expenses of administration and of conStru-
ing the viii, out of the income of the trust
estate which was bequeathed to Eliza Q. Cole
and Oscar A. Cole, and that all other expendi-
lures heretofore made or incurred, or which
shall hereafter be incurred in or about said
estate shall be paid out of the income of the
trust estate. The homestead was sold for 81, OOO,
and this forms part of the trust
estate. Can the city authorities lawfully agree
to use this any part of this sum to reimburse
the executors for PERMANENT IMPROVEMENTS
made upon the trust estate? | think they can,
although such consent or permission granted
on their part would be unnecessary, for the
reason that under the power granted the trus-
tees by the will to sell real estate and invest
and re-invest the proceeds, the Court has pow
er to authorize the investment of a part of this
fund in permanent improvements upon trust
estate which add to and increase its value
to re-imburs the trustees for such improve
ments already made and paid for by them, the
same it has power to ratify the re-invest-
ment OF the funds in any other property. But
the city cannot lawfully agree to appropriate
ANY GREATER AMOUNT of the trust fund for
such purposes than is shown to have been &C
tually expended therefor, and the difficulty in
this case is that the proof does not show that
the amount realized, to-wit, 81 600, or any con-
siderable portion of it, has been expended for
permanent improvements. Another difficulty
that confronts me if [ attempt to sustain the
agreement is, that it authorizes the use of trust
property to reimburse the executors for pay
| ments made for the FUNERAL EXPENSES OF THE