# United States National Bank v. First National Bank

> Oregon Supreme Court · September 15, 1943 · 172 Or. 683

URL: https://www.frixlaw.com/law-library/cases/3837255

## Case

- **Full name:** UNITED STATES NATIONAL BANK OF PORTLAND v. FIRST NATIONAL BANK OF PORTLAND Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** September 15, 1943
- **Citations:** 172 Or. 683; 143 P.2d 909; 142 P.2d 785; 1943 Ore. LEXIS 118
- **Precedential status:** Published
- **Opinion:** Addendum
- **Judges:** Bailey, Belt, Rossman, Kelly, Lusk, Brand, Hay
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

The consultant First National Bank of Portland, deeming that our opinion requires clarification, has petitioned that the opinion or the mandate make more specific provisions in four respects.
They ask,
"(a) Whether the agreed compensation of consultant bank for the first year of the operation of the trust is a proper charge against the corpus of the trust estate.
"(b) Whether, if the said agreed compensation for the first year of the operation of the trust, is a proper charge against the corpus of the estate, the same must be fixed as such by supplemental pleadings to be filed in the court below."
We had considered that this was a matter in which the consultant bank had little if any interest and that the issue would properly arise between the trustee bank and the beneficiaries of the trust. However, the evidence is all before us. The contract covering the first year of the services of the consultant bank was undoubtedly made in good faith. The decree of the lower court provided that the agreed compensation for *Page 719
the first year should be charged against the corpus of the estate. The beneficiaries were parties to the cause in the lower court but did not appeal, and under these circumstances we have concluded that the agreed compensation for the first year of the operation of the trust should be made a charge against the corpus of the estate, and it will be so ordered. It will not be necessary to present the matter by supplemental pleadings to the court below.
Consultant bank next asked for more specific provisions as to
"(c) Whether or not the compensation of consultant bank, in the event of disagreement between consultant bank and trustee bank, covering the years of the operation of the trust subsequent to the first year, is to be fixed in connection with an annual accounting to be filed by the trustee bank in the court below, or whether the same is to be fixed, in the event of disagreement, by supplemental pleadings, dealing only with the matter of said compensation, to be filed in this cause in the court below."
In affirming the decree of the court below, except as modified, we have held that that court should retain continuing jurisdiction of the cause. In the event of disagreement between the consultant bank and the trustee bank covering the years of the operation of the trust subsequent to the first and concerning the matter of compensation of the consultant, the issue should be submitted in the above entitled cause by motion and affidavit and upon such further evidence as the court may permit or require. If, as asserted, the trustee bank makes no periodic general reports to the circuit court, it is not our intention to require them. The issues in the case at bar do not involve any question concerning the general duty of the trustee bank to submit its accounts *Page 720
and charges to the court for approval, although we have considered it a common and safe practice.
Lastly, the consultant bank asks for a further specific provision declaring
"(d) Whether or not the term `costs' used in the last sentence of the opinion includes the reasonable attorneys' fees of both parties to this appeal, insofar as trustee bank and consultant bank are concerned, so that said reasonable attorneys' fees in connection with this appeal, or any subsequent reasonably necessary attorneys' fees, will constitute a charge against the trust estate."
The term "costs" as used in the last sentence of the opinion did not include attorneys' fees in this court, nor do we deem it proper to decide in advance what, if any, reasonable attorneys' fees should be allowed in the event of future controversy, nor whether if allowed they should constitute a charge against the trust estate. Those matters will come before the circuit court if further controversies arise. The motion of the consultant bank heretofore filed in this court for the allowance of additional attorneys' fees for legal services in connection with this appeal was not called to our attention, and we did not pass upon it. The appellant was an express trustee. The respondent consultant bank was, we have held, a fiduciary having rights and duties similar to those of an express trustee. Both parties were justified in seeking direction from the court concerning their respective duties under the will. Both are entitled to reimbursement out of the corpus of the trust for the reasonable and necessary expenses incidental to the litigation, including attorneys' fees. 1 Restatement of the Law of Trusts, § 188, Comments a, b, and c. The amount of compensation of the trustee bank for its services in this and other matters is not *Page 721
before us, and we express no opinion concerning it. The consultant bank was the defendant in the case. It prevailed below and has substantially prevailed here. We think that an award of a reasonable fee to it is properly incidental to the determination of the case on the merits. The interest of the respondent bank was twofold: first, to secure an adjudication of the measure of its duties and, second, to secure for itself compensation for its past and future services. In view of the fact that it was actuated in part by self-interest as well as by its sense of obligation under the will, we find that only a very modest fee for its services in this court should be allowed, and the same is fixed in the amount of $250.
*Page 1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3837255. Public record. Not legal advice.