272 Mass. 142 | Mass. | 1930
This is a petition for instructions as to the meaning of certain clauses in a will. There were several more or less adversary parties, each represented by counsel. The case was decided on its merits in 266 Mass. 454. The rescript following that decision, after disposing of the issues raised, contained this clause: “Costs as between solicitor and client to be in the discretion of the judge of probate.” After that rescript a decree was entered by that judge. It contains no recital of a hearing on the question of such costs. It further orders that there be allowed from the estate “costs as between solicitor and client” to each of four named solicitors, a specified sum for services set opposite the name of each solicitor, in two instances an additional sum for expenses and disbursements and in one instance an additional sum for disbursements. The executrix and
The phrase of the rescript, time-honored and in common use, is that costs as between solicitor and client are to be taxed. The word “costs” in connection with proceedings in courts imports an allowance to a party by way of either penalty against a defeated party or indemnity to a victor. It is an incident of litigation. So far as awarded to the successful party, costs are designed to mitigate to a greater or less extent the necessary expenses incurred in the conduct of litigation. Dahlstrom Metallic Door Co. v. Evatt Construction Co. 256 Mass. 404, 417, 418. This is the nature and purpose of costs whether founded on express statute or awarded by the courts in the exercise of their general jurisdiction. Burrage v. County of Bristol, 210 Mass. 299. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258. It is of the essence of costs in law that they go to a party in litigation. There is no foundation in reason, considering the nature and purpose of costs, to award costs to any one other than a party. Authorities in other jurisdictions are to that effect. Henry v. Superior Court, 93 Cal. 569. In re Knowles, 23 N. H. 193, 197. Expenses of surveys and plans in appropriate cases may be taxed as costs. But it would seem absurd to order that item paid directly to the civil engineer instead of to the party who had employed him.
The allowance of costs to be taxed “as between solicitor and client” means that this item of costs to be paid out of the fund is to be ascertained by consideration of the relation between the party thus entitled to costs, as client, and the attorney at law employed by him to conduct the litigation. The use of the word “solicitor” in this connection carries no implication that the solicitor is to be awarded the costs. It only directs attention to him as the one with reference to whom the party has been caused expense. The amount to which the party is entitled is to be calculated with regard to his attorney. Since there is no mathematical yardstick by which to measure that item of costs, as there is to ascertain taxable costs under G. L. c. 261, §§ 23, 26,
In principle this point is covered by Conley v. Fenelon, 266 Mass. 340, where it was held that under G. L. c. 215, § 45, counsel fees could not be awarded directly to attorneys as costs and expenses of a party in a contested will case. That statute was designed to extend "to the peculiar probate jurisdiction the power to award counsel fees as a part of costs which has long been exercised in suits in equity like the one at bar; it was intended by the use of the word “party” in that statute not to impose an unusual limita
It follows that “costs” as used in the rescript previously issued means the only legal sense attaching to the word, namely, something in way of indemnity for expenses incurred to be paid to a party to the litigation, and that the decree must be reversed.
The decree was wrong in another particular. The judge had no authority to award costs in accordance with the rescript except after a hearing to the parties in interest. The fact of such hearing should be recited in the decree.
It has been urged that some of the fees allowed are excessive and ought to be reduced. That contention on inspection and comparison of the figures seems to have some foundation. Ordinarily the amount of such fees rests upon the sound and deliberate judicial conclusion of the trial judge, but an error amounting to abuse of discretion may be corrected when presented by appropriate proceedings. Newton v. Consolidated Gas Co. 259 U. S. 101, 105. But the question is not raised on this record in such form that it can be decided, since there is no report of evidence or finding of facts.
Decree reversed.