Orphans' court — Practice — Counsel fees — Audit of account of trustee under insurance deed of trust — Award of fund to executors of insolvent estate — Proceeding for consideration of claim for counsel fee.
1. Where, in a case arising upon the audit of the account of the trustee under an insurance deed of trust, counsel for a creditor succeeded in having the trust set aside and the fund awarded to the executors of an insolvent estate for distribution to creditors generally, the litigation having been vigorously contested over a period of several years, a counsel fee was not to be allowed out of the fund to the attorneys for the prosecuting creditor as compensation for creating the fund for the benefit of all creditors, in the proceeding in question. [568-9]
2. Such claim for a counsel fee was a matter to be presented at the audit of the executors' account. [569]
Argued November 28, 1941.
OPINION BY MR. JUSTICE MAXEY, January 5, 1942:
This appeal should be considered in connection with the appeal of The Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee under deed of Nucom Kenin, in which appeal we have this day handed down our decision. The question involved in this appeal is as follows: In a case arising upon the audit of the account of the Trustee under an Insurance Deed of Trust, where counsel for a creditor succeeded in having the trust set aside and the fund, awarded to the executors of an insolvent estate for distribution to creditors generally, such litigation having been vigorously contested over a period of several years, should a counsel fee be allowed out of the fund to attorneys for the prosecuting creditor as compensation for creating the fund for the benefit of all creditors, in the present proceeding?
In answering this question in the negative the court below, in an opinion by Judge STEARNE, said: "As to the claim of counsel for exceptant creditor for compensation for creating an additional fund for the estate of decedent, we agree with the Auditor that such a claim is a matter to be presented at the audit of the executors' account, and is not presently before us. This claim is rejected, without prejudice, as above indicated." We agree with this.
The decree is affirmed at appellant's cost.