Does the equitable rule apply to fees paid by the common fund?

It is appellants' contention that the right to fees herein is to be governed by the equitable rule 'which permits surcharging a common fund with the expenses of its protection of recovery, including counsel fees.' (Estate of Stauffer, 53 Cal.2d 124, 132, 346 P.2d 748, 752.) The rule relied upon has been invoked in stockholders' derivative suits (In re California Mut. Bldg. & Loan Ass'n of San Jose, 68 Cal.App.2d 82, 155 P.2d 876), and by interveners in such suits. (Mann v. Superior Court, 53 Cal.App.2d 272, 127 P.2d 970.) However the situation in the instant proceedings is closer akin to that presented in the case of In re Pacific Coast Building-Loan Association of Los Angeles, 15 Cal.2d 134, 99

Page 916