Ex Parte Coleman

March 18, 1919. The opinion of the Court was delivered by The sole question raised by the appeal turns upon the construction to be placed upon the decision of this Court in the former appeal in this case reported in 106 S.C. 534, 91 S.E. 861. An examination of the records discloses that there were seven interests involved when the fees were fixed, and three interests appealed. Four did not appeal. The Court sustained the contention of appellants when the case was remanded. The probate Judge allowed the attorneys four-sevenths of their fee. An appeal was taken from this order, and his Honor, Judge Shipp, allowed the whole fee, as claimed, and required the appellants to be bound for what this Court had allowed the appellants in the former appeal, on the ground that no appeal had been taken by them, and that they could derive no benefit from the decision.

The Court, in the former opinion, held that the executors had no right to employ so many attorneys, the same not being necessary, but, inasmuch as no one appealed, except the appellants, the decree as to them was reversed, but that the parties not appealing were bound. This means they are bound for their proportionate part of the fee, as formerly fixed, and not the whole as fixed. That had they appealed, the decree would have been reversed as to them, as well as the appellants. The probate Court properly construed the intention and decision of this Court. The exceptions are sustained, and judgment of Circuit Court reversed, and judgment of the probate Court affirmed and made the judgment.

Reversed.

MESSRS. JUSTICES HYDRICK, FRAMER and GAGE concur.

MR. CHIEF JUSTICE GARY did not sit.