93 Pa. 369 | Pa. | 1880
delivered the opinion of the court, March! 15th 1880.
The facts of this case fully justified tho action of the court below.i The proceedings in partition, from their inception until the order of sale was issued to appellant, were conducted by the appellee, who claimed for his services $40, which was certainly a reasonable compensation, as the auditor has found. The heirs having refused to take either of the purparts at the valuation, the order of sale embraced all the real estate of the intestate, and the costs of partition, including counsel fees for conducting the same, were properly
The appellant contended that the case was ruled by Snyder’s Appeal, 4 P. F. Smith 67, but we think not. The facts are not the same. There the fund for distribution represented but a small portion of the real estate embraced in the partition. Six of the purparts had been accepted and only one sold. The claim was also presented to' the auditor without having been first brought to the attention of the court. In the present case the appellee’s claim was the only matter presented by the exception and passed upon by the court. It might and should have been done without reference to an auditor; but, technically, there was no error in referring the matter to an auditor. The decree confirming the report, in effect, fixed the allowance to be paid out of the proceeds of sale.
Decree affirmed and appeal dismissed. And it is now ordered that the costs, including the costs of this appeal, be paid by the appellant.