Ragan v. . Ragan
119 S.E. 882
N.C.
1923
Check Treatment
Clarkson, J.

In the case of Bridges v. Pleasants, 39 N. C., 26, cited and approved at this term by Rohe, J., in Weaver v. Kirby, ante, 387, the facts are that a good man, Stephen Justice, made his will and, after making certain bequests, directed, “After my will is complied with, after the above directions, it is my will that $1,000, if there be so much remaining, be applied to foreign missions and to the poor saints; this to be disposed of and applied as my executor may think the proper objects, according to the scriptures,” etc. The plaintiffs filed a bill in equity, under the old practice, against the defendant executor, claiming that they were the testator’s next of kin, and that the sum belonged to them as not being effectually given away. Hon. George E. Badger, the brilliant lawyer and statesman of his day, represented the plaintiffs. He argued that the cy-pres doctrine did not prevail in this State, as in England, and his clients, the next of kin, were entitled to the fund; that the gift to “foreign missions” and to the “poor saints” were too indefinite, and therefore void. Hon. John Manning, of blessed memory to his law students and all who knew him, in speaking of the cy-pres doctrine to his students, said that Mr. Badger argued to this Court that if they should decide against his clients and that the cy-pres doctrine did prevail in North Carolina, that he thought *464 the fund should go to the lawyers, that they were the “poor saints.” The Court, by Ruffin, C. J., held that the directions were too indefinite and void. Mr. Badger’s clients obtained a decree for $1,000 — the “poor saints” got nothing.

In the instant case, the court below was of the opinion that the $1,250 attorneys’ fees is no part of the cost to be taxed, and that the court had no legal power to tax it. If it did have the power it would do so. We are of the opinion that the court below committed no error in not allowing the attorneys’ fees.

The case of In re Stone, 176 N. C., 337, we do not think is applicable to this one. In that case the facts are “that Mrs. Stone, as adminis-tratrix, recovered $10,000 for the negligent killing of her husband. A controversy arose between her and her only child as to the division of this fund. In that action E. P. Stone, uncle of Thomas S. Stone, the infant, was appointed next friend by the court to protect the interests of the infant. In order to do so, he employed counsel to appear in the cause, which they successfully prosecuted to this Court, and thence followed it to the Supreme Court of the United States. Under the final judgment they recovered for the infant $6,500.” Brown, J., in that case said: “The prochein ami, or next friend, is appointed by the court to protect the infant’s rights. It is essential that he have the assistance of counsel learned in the law. The infant has no power to contract as to fees, and in most cases is too young to understand such matters. Referring to. the duty of the court in respect to infants, in Tate v. Mott, 96 N. C., 23, Judge Merrimon says: ‘The infant is in an important sense under the protection of the court; it is careful of his rights, and will in a proper case interfere in his behalf and take, and direct to be taken, all proper steps in the course of the action for the protection of his rights and interests.’ It would be very singular that the courts should assume the duty of seeing that all steps are taken to protect the infant’s rights and yet deny to themselves the power to compel the payment of the necessary expenses out of the infant’s estate recovered in the cause. While the next friend has the power to employ counsel to prosecute the action, and it is his duty to do so, he cannot make a binding contract for compensation. Honck v. Bridwell, 28 Mo. App., 644. The court may fix the attorney’s compensation without regard to any contract. 14 Ency. P. and P., 1037, and eases cited; Dole v. Superior Court, 63 Cal., 87.”

We do not think the cases cited in plaintiffs’ brief —Fortune v. Hunt, 152 N. C., 715, and Hinnant v. Wilder, 122 N. C., 149— are applicable to the facts in this case. Nor do we think that section 1244 of Consolidated Statutes and subsection 7 thereof applicable, which are as follows: “1244. Costs allowed either party or apportioned in discretion *465 of court. Costs in tbe following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court.” “Subsection 7. All costs and expenses incurred in special proceedings for the division or sale of either real estate or personal property under the chapter entitled Partition.” “Costs” or “All costs and expenses” does not include attorneys’ fees. Attorneys must make contracts with their clients for their fees. The courts cannot do for them what they have not done for themselves. In the Stone case, supra, the infant could not contract, and the court made the allowance.

In Bank v. Land Co., 128 N. C., 194, there was a provision in a nóte “with all costs of collection including 10 per cent attorneys’ fees in case suit is necessary for collection.” This was held contrary to public policy and void. Williams v. Rich, 117 N. C., 235; Brisco v. Norris, 112 N. C., 677; Tinsley v. Hoskins, 111 N. C., 340. A stipulation in a deed of trust for attorneys’ fee was also held invalid. Turner v. Boger, 126 N. C., 302. “Attorneys’ fees are not recoverable by successful litigants in this State, as such are not regarded as a part of the court costs.” Midgett v. Vann, 158 N. C., 128; Dolan v. Trust Co., 139 N. C., 214.

In Knights of Honor v. Selby, 153 N. C., 207, Manning, J., says: “¥e do not think there was any error, however, in the ruling of his Honor, disallowing an attorney’s fee to. the plaintiff to be paid out of the fund, and ultimately to be taxed against the unsuccessful defendant. We do not think such practice has obtained in this State. In Gay v. Davis, 107 N. C., 269, this Court said: ‘There is no statutory provision in this State that has been brought to our attention, or within our knowledge, that prescribes or authorizes an allowance of compensation directly to the counsel of commissioners charged with a particular duty by an order of the court, or otherwise, or to counsel of trustees, whatever may be the nature of the trusts wherewith they may be charged. Nor is there any general rule of practice prevailing in courts that permits such allowance to be made. In the absence of statutory provision, the courts, in the exercise of chancery powers, make allowances to commissioners and trustees in appropriate cases, and such allowances are sometimes enlarged so as to embrace reasonable compensation to counsel of such commissioners or trustees, in cases where counsel is necessary to a proper discharge of their duties; but in such cases the courts are careful to see that the services were necessary, that the charges are reasonable and are charged against the proper parties.’ ” Byrd v. Casualty Co., 184 N. C., 226; Roe v. Journigan, 181 N. C., 183; Shute v. Shute, 180 N. C., 389.

We find the law against the contention of the plaintiffs. The court below so held, and we can see no error.

Judgment affirmed.