Appeal of Fidelity Insurance Trust & Safe Deposit Co.

Mr. Justice Sterrett delivered the opinion of the • court, February 9th, 1885. The Act of April 27th, 1864, “relative to costs in eases of partition,” provides, “ That the costs in all cases of partition in the Common Pleas and Orphans’ Court of tins Commonwealth, with a reasonable allowance to the plaintiffs or petitioners for counsel fees, to be taxed by the court or "under its direction, shall be paid by all the parties in proportion to their several interests: ” P. L., 641. If there ever was any doubt as to the object and scope of tins Act, it should have been dispelled by what was said in Snyder’s Appeal, 4 P. F. S., 67, and Grubb’s Appeal, 1 Norris, 23. The mischief and the remedy are clearly pointed out in those cases. It frequently occurred, as it still does, that, in consequence of minority, coverture and other' causes, one of "several tenants in common was compelled to resort to proceedings in partition for the purpose of effecting a division of the property held by them in common; and, no matter how small his interest therein might be, he was under the necessity of employing counsel to conduct the proceedings to a conclusion which was quite as beneficial to each of the others as to himself. The entire burden of paying for indispensable professional aid, in conducting the formal proceedings in partition for the common benefit of all, was thus cast on the one who instituted the proceedings. The Act was intended to remedy this injustice by requiring that a reasonable compensation for the necessary professional services of counsel retained by the plaintiff [343] or petitioner, as the ease might be, should be determined by the court and paid by all the tenants in common in proportion to their respective interests. The design of the Act was to place the parties upon a relative equality as to the necessary expenses of effecting a partition of the common property; and it was evidently intended that those expenses should include not only the docket costs proper, fixed by Act of Assembly or by the Equity Fee Bill, but also a reasonable allowance for counsel' fees, graduated according to the circumstances of each particular case, the nature and extent of the services necessarily rendered for the common benefit of all the parties in interest. In view of what has been said, it is scarcely necessary to add that the “ reasonable allowance ” contemplated by the Act does not include expenses of adversary proceedings, resulting from a defence to the plaintiff’s demand for partition or from any other cause. Such an allowance would be clearly beyond the scope of the Act. The main ground of reversal in Grubb’s Appeal, supra, was that the Auditor allowed counsel fees to the plaintiffs for what he termed “the litigation of the defendant.” In the case before us, appellant’s claim is expressly limited to compensation for the necessary professional services of counsel in conducting the proceedings in partition to a conclusion for tbe common benefit of all the parties thereto., No claim is made for services in litigating the right of plaintiff below to partition. The learned Master and court below appear to have thought the only proper allowance was that specified in the Equity Fee Bill, viz: 115.80. In that they were clearly mistaken. In addition to the costs, given by the fee bill, appellant was entitled under the Act of 1864 to a reasonable allowance for counsel fees, to be determined by the court below according to the rule above indicated. We do not understand that the sum claimed is objected to as unreasonable, nor does there appear to be any ground for such objection; but, inasmuch as it is primarily the duty of the court below to fix the amount, the record must be remitted for that purpose. Decree reversed, at the cost of the-appellees; and it is ordered that the record be remitted .to the court below for further proceedings in accordance with the foregoing opinion.