Hardy v. RichardsHardy v. Richards
delivered the opinion of the court.
Thе question for our decision in this case is whether the chancellor erred in allowing a fee of eight hundred dollars to solicitors for complainant, to be paid out of the proceeds of the sale of property in partition proceeding, and charging it against the interests of both parties.
Dr. Cornelius Hardy died on December 13, 1908, leaving a will in which he devised a large part of his estate ■ to Thomas W. Hardy, appellant herein, to be held in trust for the support of his widow, Mrs. Sallie Bibb Hardy, during her life; she being at the time confined in the asylum for the insane at Meridiaji. On April 8, 1909, Mrs. Hardy was brought before a jury in Lowndes county and duly adjudged to be insane, аnd on the same day the appellee, the chancery clerk of that county, was appointed and qualified as her guardian, and still on the same day he, as guardian, filed a renunciation of the will, and on the next day the chancery court by deсree confirmed the renunciation made by the guardian. On April 16, 1909, a decree was entered authorizing an appeal to the supreme court from the decree confirming the renunciation by the guardian to settle the principles of law.
On April 17th the original bill for partition was filed by the appellee as guardian against appellant, praying for partition in kind of the рersonal property of the estate of Dr. Cornelius Hardy, and a sale for partition of the real estate. Appellant was summoned to appear at the October term, 1909, of the court, and on October 2, 1909, he filed a demurrer to the bill. The appeal was prosecuted, and this court rendered its decision on January 30, 1911,. sustaining the action of the chancery court in confirming the renunciation of the will. See case of Hardy v. Richards,
The appellee, complainant in the court below, answered the'cross-bill, and therein claimed that two notes, for one thousand dollars each, which appellant had stated in his answer and cross-bill that he could not collect, be charged against appellant’s interest in the estate. The record shоws that the land was duly sold for division of the proceeds, and the personal property divided among the parties, and that thе court continued for further hearing the question regarding the disposition of the two notes for one thousand dollars each.
It will bе seen that at the time of the filing of the bill for partition there was pending upon appeal to the supreme court a proceeding to settle the right of the renunciation of a will by the guardian of a‘widow who was ■non compos mentis, and that this case was being aсtively contested, and that, unless this court should sustain the finding of the chancellor, Mrs. Hardy would not own in fee a share of the estatе, and her guardian could not successfully maintain the suit filed’ for partition. We find in the brief of counsel for appellee the stаtement, in referring to the case which was appealed, that all action in the suit for partition “was postponed until the hearing and determination by the supreme court of the contest between the parties.” It will also be noted that appel
Section 3542 of the Code of 1906 provides that, in cases of partition or sale of property for division of proceeds, the court may allow a reasonable solicitor’s fee to the sоlicitor of complainant, to be taxed as a common charge on all interests, and to be paid out of the prоceeds in case of a sale. But it is well settled that such fee should not be allowed where there is a real controversy between the parties, and where there is a propriety in a defendant being represented by counsel of his own. In the case of Hoffman v. Smith,
This announcement of the rule hy Judge Campbell has been approved in the cases of Neblett v. Neblett,
Reversed and remanded.