Appeal of Biles

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 [108] direction. 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.