APPEAL OF PAMELA J. BILES ET AL.
FROM THE DECREE OF THE ORPHANS’ COURT OF CHESTER COUNTY.
Argued February 8, 1888
Decided February 27, 1888.
Under the act of April 27, 1864, P. L. 641, relative to costs in cases of partition, only the costs of the petitioner’s counsel may be taxed with the other costs, not the counsel fees of other parties in interest, though they are in sympathy with the proceedings.
*106Before Gordon, C. J., Parson, Sterrett, Green, Clark and Williams, JJ.; Trunkey, J., absent.
No. 175 January Term 1888, Sup. Ct.
On August 8,1887, upon the petition of Pamela J. Biles, Sarah F. Spencer, Amos T. Biles, Charles C. Biles and Annie M. Biles, children and heirs at law of Samuel Biles, deceased, of New London township, an inquest was awarded for the partition of the real estate of said deceased, a return thereof filed, and on October 31, 1887, the three purparts were severally decreed to the heirs interested accepting the same. In the decree allotting the purparts was the following:
And the court do further tax the costs of this proceeding as follows, to wit:
Sheriff’s fee for jury of inquest, $ 41.87.
Fees of Clerk of Orphans’ Court, 16.15.
George B. Johnson, attorney for petitioners, fees, 100,00.
R. S. Waddell, attorney for John P. Biles, 75.00.
And the court orders and decrees that the said costs shall be paid out of the valuation or purchase money of tract No. 3 of said real estate, as part of the purchase money thereof, and shall be borne equally by all the heirs, and their respective proportions of said costs shall be deducted from the amount of the bonds to them respectively and the costs paid in cash.1
By the Court.
From this decree the petitioners took this appeal specifying that the court erred in awarding to Mr. R. S. Waddell, attorney for John P. Biles, $75, and in ordering that the said sum should be paid out of the valuation or purchase money of tract No. 3, as in the foregoing order.1
Mr. George B. Johnson, for the appellants:
The interpretation of § 1, act of April 27, 1864, P. L. 641, is plain enough from its language and design. That which is to be allowed is costs in the partition, and these, with a rea*107sonable compensation to tbe plaintiff or petitioner for counsel fees, are to be taxed by tbe court: Snyder’s Appeal, 54 Pa. 70; Grubbs’ App., 82 Pa. 29, tbe petitioner’s counsel alone being entitled to compensation out of tbe estate: Campbell’s Est., 13 W. N. 145.
Mr. B. T. Cornwell and Mr. B. S. Wadclell, for tbe appellee :
Tbe act of 1864 was interpreted in Synder’s App., 54 Pa. 67. The appellee was not a litigant to the estate, nor was he a respondent. He did not oppose tbe proceedings, but was in entire sympathy with them. He did not sign tbe petition with tbe appellants, for be did not know of its existence. He bad incurred expenses attendant upon tbe proceedings; bis counsel bad prepared a petition, bad examined letters and made searches; bad advised with him and tbe other heirs as to their best interests. These facts being within tbe knowledge of tbe court, tbe counsel fees were taxed to be paid in tbe manner stated in tbe decree.
Opinion,
Mr. Justice Clark:
. Tbe only error assigned in this case is, that the Orphans’ Courttaxed with tbe costs and awarded to R. S. Waddell, Esq., attorney for John P. Biles, tbe sum of seventy-five dollars, as an allowance for counsel fees. Prior to the passage of tbe act of April 27,1864, tbe burden of compensating counsel for conducting proceedings in partition was borne in the Orphans’ Court, by tbe petitioner, and in tbe Common Pleas, by the plaintiff; and, as the result of the action was alike beneficial to all tbe parties, it was deemed advisable to equalize tbe burden.
Tbe act of April 27, 1864", therefore provides, as follows: — • “ Tbe costs of all cases in partition, in tbe Common Pleas or Orphans’ Courts of this commonwealth, with a reasonable allowance to the plaintiffs or petitioners for counsel fees, to be taxed by tbe court or under its direction, shall be paid by all the parties in proportion to their several interests.” Tbe act was nqt designed to pay tbe fees of mere litigation; services in tbe trial of contested eases were not the end in view: Grubbs’ Appeal, 82 Pa. 23; hence tbe law fixes tbe compensation as a reasonable one, to be taxed by tbe court or under its *108direction. This enables tbe court to see that only a proper charge is made : Snyder’s Appeal, 54 Pa. 70.
But John P. Biles was not one of the petitioners in this proceeding. The petition, which it is alleged had been prepared by Mr. Waddell in his behalf, was never presented to the court; if this had been done, he might, under the circumstances, have been joined in the action; but this was not done, and even if it be true, that John P. Biles actually favored the partition, and acquiesced in all the proceedings which were had in the case, still he was in fact not one of the petitioners.
The compensation of the petitioners’ counsel, can only be taxed with the costs, because the act of assembly expressly authorized it. The power of the court is necessarily limited to the provisions of the statute. As the court had no power to tax the counsel fees of any but the petitioners’ counsel, it follows that the decree was in this respect erroneous.
The decree of the Orphans’ Court is therefore reversed, and the record remitted, in order that the decree may be modified in accordance with this opinion. The appellee to pay the costs of this appeal.