March 3, 1906. The opinion of the Court was delivered by
The brothers and sisters and the nephews and nieces of Silas Butler brought this action for partition against his widow. Partition in kind having been found impracticable, the land was sold by order of the Court. *Page 403
The master reported that attorneys for plaintiff should be allowed a fee of $250 for their services in the partition suit, to be paid out of the proceeds of sale of land before distribution. Upon exception to this recommendation of the master, the Circuit Judge held there was no warrant for the allowance of a fee to the attorneys for the plaintiffs out of the common fund. The precise point was decided in Westmoreland v.Martin,
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.