Davis v. Bay State League

Field, C. J.

In Hobbs v. McLean, 117 U. S. 567, 582 , it is said, “ When many persons have a common interest in a trust property or fund, and one of them, for the benefit of all and at his own cost and expense, brings a suit for its preservation or administration, the court of equity in which the suit is brought will order that the plaintiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who accept the benefits of his efforts.” The subject has been carefully considered in Trustees v. Greenough, 105 U. S. *435 527 , and Central Railroad & Banking Co. v. Pettus, 113 U. S. 116 . This court has acted on this rule, not only in cases of express trusts under wills or other written instruments, but in a proceeding for the common benefit of many persons interested in the preservation of property. Amory v. Lowell, 1 Allen, 504 , 508. Kinmonth v. Brigham, 5 Allen, 270 . Frost v. Belmont, 6 Allen, 152 , 164. Bowditch v. Soltyk, 99 Mass. 136 . See Baker v. Clarke Institution for Deaf Mutes, 110 Mass. 88, 92 ; Commonwealth v. Mechanics’ Ins. Co. 122 Mass. 421 ; Cobb v. Rice, 130 Mass. 231, 235 ; Clark v. Sawyer, 151 Mass. 64 . In all matters of insolvency the court has power under the statutes to award costs to be paid out of the estate which is the subject of the controversy, if justice and equity require it. Pub. Sts. c. 157, § 140. In probate cases the court has by statute the power to award costs and expenses to be paid out of the estate. Pub. Sts. c. 156, § 35. St. 1884, c. 131. See Willard v. Lavender, 147 Mass. 15 .

We have no doubt of the power of the court in the present case to order a reasonable amount to be paid to the counsel for the petitioners out of the fund in the hands of the receiver, and we are of opinion that there should be a decree in accordance with the finding of the justice who reported the case.

So ordered.