168 S.E. 671 | N.C. | 1933
Issue of devisavit vel non, raised by a caveat to the will of M. T. Howell, late of Franklin County, based upon alleged mental incapacity and undue influence, heard upon issue of mental capacity, which resulted in a mistrial; whereupon allowance out of the estate of counsel fees to attorneys for caveators was made over objection of propounders and executor, from which order they appeal. After probate in common from, a caveat was filed to the will of M. T. Howell, based upon alleged mental incapacity and undue influence. The matter was transferred to the civil issue docket for trial. The case was heard and a mistrial ordered when the jury failed to agree. There was evidence pro and con on the issue of mental capacity, but none to support the allegation of undue influence. From an order directing the executor to pay out of the estate counsel fees to attorneys for caveators pending further proceedings, the propounders and executor appeal.
Under the Revised Code of 1854, chap. 102, sec. 16, it was permissible to include certain attorney's fees, definitely fixed by the statute, as a part of the costs in civil suits, but this was repealed by chap. 41, Laws, 1879. Clifton v. Wynne,
Speaking to the subject generally in Mordecai v. Devereux,
Nor is it permissible ordinarily to award as an element of damages, attorney's fees incurred in the course of litigation. Parker v. Realty Co.,
A stipulation in a promissory note, mortgage, or deed of trust, authorizing the collection of attorney's fees in the event of foreclosure or suit, has been held to partake of the nature of a penalty or forfeiture, to savor of usury, and to be contrary to the public policy of the State.Bank v. Land Co.,
It is true, that in the exercise of chancery powers, or by express statute, the court may make an allowance for attorney's fees as reasonable expenses incurred by a personal representative, trustee, or person appointed by the court for a particular purpose, as next friend or guardianad litem for an infant or insane person. In such cases the amount to be paid does not depend upon the agreement of the parties, but is within the control of the court. In re Stone,
The authorities on the precise question here presented are variant, as will appear by reference to Annotations in 10 A.L.R., 783, and *439 69 A.L.R., 1052, where the whole subject is elaborately discussed. There seems to be no precedent in this jurisdiction for ordering an executor, pending the proceedings, to pay out of the estate counsel fees to attorneys for caveators. Nor is the authority supported in tendency by our decisions. They point in the other direction. The order appealed from will be stricken out or vacated.
Error.