Gomez v. Gomez

We quite concur in the disposition of this case made by the learned referee, and in the reasons given therefor in his full and careful opinion. The only question which we think needs special consideration relates to the award of costs. The defendant is allowed the sum of $2,642.56 for his costs and extra allowance. The judgment directs that from this amount the sum of $968.63, ordered to be paid to the plaintiffs by the defendant, shall be deducted, and that the balance, together with the plaintiffs’ costs, amounting to $951.06, shall be charged against the share of the estate held in trust for Edwin Gomez, Sr., the plaintiffs’ father and assignor. By the interlocutory judgment, from which no appeal was taken, costs were awarded to the plaintiffs; and the question whether such costs should be paid out of the estate or by the defendant personally was left for future decision. We think that the trust estate referred to must be deemed to be that part of the whole trust estate belonging to the plaintiffs. This was the only estate before the court or subject to its decree. None of the other cestuis que trustent made themselves parties to the action. It proceeded wholly in the plaintiffs’ interest, the sum recovered from the defendant being awarded to them. The other cestuis que trustent cannot be forced to contribute to the expenses of an action to which they did not choose to become parties, and *246in the benefits oí which they have not participated. We agree with the referee that the defendant should not be compelled to pay these costs personally, and hence affirm that part of the judgment charging them against the plaintiffs’ share. But we think that the award of costs to the defendant should be stricken out. The plaintiffs have succeeded in surcharging his accounts to the amount of nearly $1,000; and, under such circumstances, it would certainly be a hardship to allow him costs against the plaintiffs personally. Yet that is what is practically done when the costs are charged against their share of the estate.

The judgment should be modified by striking out the award of costs to the defendant, and, as so modified, it should be affirmed, without costs of this appeal to either party. All concur.