Lomax v. Shinn (74 Ill. App. 50, 1897)

Mr. Justice Dibell

delivered the opinion of the Court.

This was a suit brought by appellees, March' 20,1893, against appellant and others for partition of real estate. A decree of partition was affirmed in 162 Ill. 124, and 162 Ill. 214. After a sale of the realty by a master the court fixed the fees of the complainants’ solicitors at $2,000, and directed said sum to be paid pro rata out of the shares of the several parties as established by the decree. The decree found appellant the owner of about one-half the land, and the order in question, therefore, required the payment of about $1,000 out of his funds, and from that order he prosecutes this appeal. It is admitted the allowance was reasonable for the services rendered, but appellant denies that he is legally liable for any part thereof. The partition statute (R. S. 1874, Ch. 106, Sec. 40, as amended in 1889) directs that “ when the rights and interests of all the parties in interest are properly set forth in the petition or bill,” the court shall apportion a reasonable solicitor’s fee among the parties in interest so that each shall pay his or her equitable portion thereof, “unless the defendants, or some one of them, shall interpose a good and substantial defense tó said bill or petition.” Appellant claims he did “interpose a good and substantial defense,” within the meaning of said provision.

The land belonged to Thomas B. Carroll at the time of his death in 1858. He left a will which was duly probated. The will (which is set out in 162 Ill. 124) gave some interest in said land to his wife, Sarah Carroll. During her lifetime she deeded much of said land in fee to appellant. By her last will she devised a part of said land to him. Appellant also obtained deeds from several of the heirs at law of -Thomas B. Carroll. In his answer appellant claimed that said Sarah Carroll took said lands in fee under the will of her husband, and therefore appellant acquired the fee under her deeds to him. The ivill of Thomas B. Carroll also gave his wife a power of appointment by will as to one-half “ the balance ” of his estate; and appellant, in his answer, contended that if the wife did not take the fee her deeds to him should be treated as an execution of the power, and therefore as conveying the fee of an undivided half of said lands to him. He also claimed the share in said lands given him by her will. It is stipulated that these defenses were interposed by appellant in good faith, and that he stubbornly contested the claim of the complainants in both the Circuit and Supreme Courts. The courts, however, held that Sarah Gar roll took under her husband’s will only a life interest in the realty and a power of appointment of an undivided half thereof by will; that her deeds only conveyed to appellant said life estate, and were not an execution of the power of appointment; that her will was void as to appellant because he was a witness thereto, and the decree only gave him what he acquired by his deeds from the heirs at law of Thomas B. Carroll. Appellant employed and paid his own solicitors in the Circuit and Supreme Courts.

Appellees insist that the statute means a defense that is successful. The Supreme Court in Metheny v. Bohn, 164 Ill. 495, held that the language above quoted from the statute “ should be construed as meaning that a defense, valid and substantial in character, made in good faith and on reasonable ground, should exempt a defendant from paying a solicitor of his adversary, not for services rendered to him but for a hostile attack upon what he in good faith believes to be his substantial right; ” that the defense there interposed was of a good and substantial character, not undertaken without reasonable grounds although it proved unsuccessful, and that in such cases “ it would not be equitable for the defendant to pay a part of a solicitor’s fee solely earned as his adversary.” It is true that in that case the court found there was no sufficient evidence in the record as to what was the customary and usual charge for such legal services, and held that for want of such proof in the record the allowanee could not be sustained. But the court further said,