
    GRAHAM et al v. BERGEN et al, Trustees
    Ohio Appeals, 4th Dist., Franklin County
    No. 1069.
    Decided Jan. 9, 1924
    309. COSTS — Those of the proceeding, including those of the Special Master and his report, charged to and paid out of the fund in controversy.
    Attorneys — Henry Williams and M. R. Patterson,. Columbus, for Graham et al; Turner & Calland and Henry Gumble, for Berger et al.
   BY THE COURT.

Epitomized Opinion

Counsel for the plaintiff contend that the decision of this court in this case is contrary to the majority opinion inDirlam v. Morrow, 102 OS. 279, and make application for a rehearing.

' The Court of Appeals says that they considered the briefs upon re-hearing and have reread the above case and another cited, and have given the case icareful consideration. That while the case is not free from doubt, it is our best judgment that the former decision be adhered to for the reason therein stated.

.Application has-been made, also, for a taxation of all the costs against the fund, including the cost of the special master commission and other .costs shown by his report. But we find that the reference to a special master was necessary and proper and the costs thereon was a necessary incident. In view of the doubt in this case, we are of the opinion the usual rule should be followed, and these costs should be taxed as part of the costs and paid out of the fund which is, the subject of the controversy. Judgment accordingly.  