Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
The single issue on this appeal is whether the Chancery Division judge erred in disallowing a counsel fee to plaintiffs' attorneys, chargeable against the trust estate. The matter is presented to us on an agreed statement in lieu of record. The request for counsel fees arose in an action involving a testamentary trust heretofore considered by this court. The background facts are these.
Plaintiffs are the children of Eugene Alan Bush, Sr., the son of decedent Therese Mury Bush, who died testate in February 1942. By her will she directed her executors to divide the residue of her estate into two equal parts. The
first was given outright to her daughter Margaret. The second (after deducting certain debts owing her by her son Eugene) was to be held in trust for the son and his five children under the terms and conditions of paragraph Tenth (B). The trustees were to pay Eugene during his lifetime so much of the net income from time to time as they, in their absolute discretion, thought proper for the support and education of his five children or the children of any deceased child. Surplus income not distributed or used was to be added to principal. Upon Eugene's death, the principal was to be divided into five equal parts, one part to go to each of his children or, if any child had died, to the children of such child per stirpes. Principal was to to be paid over to each beneficiary upon attaining age 25; meantime, the income of any part was to be used for the support and education of the beneficiary in such amounts as the trustees thought proper until the beneficiary reached 25.
On June 15, 1959 Eugene, by instrument in writing, released and surrendered all of his right, title and interest as beneficiary under his mother's will and authorized the trustees to pay the balance of the trust directly to plaintiffs as remaindermen. The release recited that it was his intention to accelerate the estate so that distribution of the remainder under paragraph Tenth (B) might be effected immediately.
Plaintiffs were all in being at the time decedent executed her will, and had attained age 25 when they filed their action in the Chancery Division demanding judgment permitting acceleration of the trust. Each of the plaintiffs, except for Mary Jane Bush Van Brunt, had issue living, all of them infants. Named as defendants in plaintiffs' action were the trustees and plaintiffs' infant children. Also joined as defendant was the guardian ad litem (appointed pursuant to court order) for those infants, as well as all children not in being and who might have a substitutionary interest under the trust. While the Chancery Division action was
pending, it was disclosed to the guardian ad litem that the trust principal, if the trust was effectively terminated by operation of the aforementioned release, would be distributed equally among Eugene and his five children, in accordance with a written agreement among them.
The Chancery Division action resulted in a judgment entered March 24, 1961 accelerating and terminating the trust under paragraph Tenth (B) of the will and directing distribution of the principal among plaintiffs and their father. Counsel fees were allowed to plaintiffs' attorneys, the trustees and the guardian ad litem. Defendants appealed, arguing that the judgment accelerating the trust was incorrect. The briefs did not refer or object to any allowance of fees in the Chancery Division.
By our per curiam opinion of November 21, 1961 (not reported) we reversed, holding that acceleration and termination of the trust before the death of Eugene, the father, would be contrary to testatrix' express and implied intention as evidenced by the terms of her will. (Dockets A-617-60 and A-620-60).
Plaintiffs thereupon petitioned the Supreme Court for certification to review our action. The petition was denied. Bush v. Riker , 37 N.J. 55 (1962).
Following the denial of the petition for certification, the respective attorneys applied for counsel fees. The Chancery Division judge, in the judgment dismissing the complaint pursuant to our mandate of reversal, granted the attorneys for defendant trustees a counsel fee of $3,000, plus their disbursements, chargeable to the corpus of the trust estate. A counsel fee of $3,000 was allowed the guardian ad litem , ...