Weed's Estate , 163 Pa. 600 ( 1894 )

Opinion by

Mb. Justice McCollum,

This is an appeal from an order of the court of common pleas authorizing the trustee of an estate to pay out of the trust fund $7,500 for services rendered by counsel in its interest. The grounds on which it is sought to sustain the appeal are, (1) the order was not within the power of the court,. (2) the evidence was not sufficient to warrant it, and (3) the allowance to counsel was excessive. The denial of the power' of the court to make the order is sufficiently answered by Trustee v. Greenough, 105 U. S. 527, in which it was held, in an elaborate and well considered opinion by the late Justice Bbadley, that “ one jointly interested with others in a common fund and who in good faith maintains the necessary litigation to save it from waste and destruction and secure its proper application, is entitled, in equity, to reimbursement of his costs as between solicitor and client, either out of the fund itself, or by proportional contribution from those who receive the benefits of the litigation.” In that case the allowance was made by the circuit court, and Justice Bbadley, referring to the amount of it, said: “ The court below should have considerable latitude of discretion on the subject, since it has far better means of-knowing what is just and reasonable than an appellate court can have.” We think these principles are applicable to the case before us, and that it would be an affectation of research to' cite the long line of cases, English and American, which recognize and enforce them. In view of the question reserved in the order complained of and the fact that it is squarely raised by the bank on its appeal from the decree confirming the auditor’s report [the preceding case], we need not now consider whether it has an equity which requires that the counsel fees shall be paid by the successful litigants.

The learned court below might have appointed a master or an auditor to report on the question of the amount of allowance proper for the services rendered, but it was not bound to do so. It might have derived some assistance from the report of a master or auditor on the question, but it would have been advisory and in no sense conclusive. Hence if the court was willing to hear evidence on the subject and determine the question of compensation without the aid of 'a master, there could be no insuperable objections to its doing so. Such method of meeting and disposing of the question, has, at least, the merit, or advantage, of saving expense to the estate. There was a hearing by the court at which evidence was taken in reference to the value of the professional services rendered to the estate, and an opportunity was afforded to the appellant to introduce evidence in reply. The latter refused to do so, saying through its counsel: “We object to the form of the proceedings and it will be incompetent for us to produce witnesses.” The learned court, upon the evidence before it, and the knowledge acquired by its review, upon exceptions ‘to the master’s reports, of the cases in which the services were rendered, fixed the compensation to be paid for them. In view of the principles stated, the nature of the services and the benefits derived from them by the estate, we cannot say the allowance was excessive or unreasonable.

The specifications of error are overruled.

. Judgment affirmed and appeal dismissed at the costs of the appellant.