
    John Di Iorio, Admr. vs. Annie Cantone et al.
    
    JANUARY 9, 1929.
    Present: Sweetland, C. J., Stearns, Rathbun, Sweeney, and Barrows, JJ.
   Sweetlanb, C. J.

The above entitled case is an appeal of the administrator of the estate of Nunziata Bianco, deceased, late of Providence, from a decree of the Municipal Court of Providence allowing the final account of the administrator as amended by said court, wherein by said amendment the Municipal Court refused to allow to the administrator payments set forth in the account filed by him. The appeal was heard in the Superior Court and the decree appealed from was affirmed. Upon exception this court approved the decision of the Superior Court and remanded the cause to that court for further proceedings. Thereafter the Superior Court granted the motion of the attorney for the appellees, that the attorney’s fees and the expenses of the appellees be allowed by the court and ordered paid by the administrator from the funds of the estate. The Superior Court directed the payment of those allowances in its final decree, a copy of which was to be certified to the Municipal Court. To this action of the Superior Court the appellant administrator excepted and now relies upon that exception before us.

A probate court may allow in the accounts of executors and administrators the reasonable payments of such personal representatives of a decedent for necessary expenditures and for the fees of their attorneys, as part of the expenses of administration to be paid from the estate. In the absence of statutory authority therefor, probate courts are without power to order payment from the estate of the expenses and counsel fees of claimants, heirs or distributees who have been parties to adversary proceedings against such personal representatives. We do not find any express statutory authority for the exercise of such power by probate courts. In support of the allowance made by the Superior Court the appellees rely upon the provisions of Section 14, Chapter 360, Gen. Laws 1923, which are as follows: “Sec. 14. In cases contested before a probate court or on appeal therefrom costs in the discretion of the court may be awarded to either party to be paid by the other, or to either or both parties to be paid out of the estate which is the subject of the controversy, as justice may require.” The appellees contend that the word “costs” in that section should be construed to include the expenses and the counsel fees of a party. Nothing appears in the context which indicates an intention in the general assembly to use the word “costs” in this statute in any other sense than with reference to those allowances and reimbursements to a party which are to be taxed by the court’s- clerk in accordance with express provisions of the statute, and which are usually known and referred to as the “taxable costs” in a suit. In the statute in question the word “costs” is used in the same sense as in the general provision that ordinarily “in all civil actions at law the party prevailing shall recover costs” and as the word is used in all the provisions of Chapter 345, Gen. Laws 1923, entitled “Of Costs.” With reference to none of those provisions has the word “costs”-been interpreted to include counsel fees.

The general assembly in some instances has expressly provided for the allowance of counsel fees, as in Section 22, Chapter 339, Gen. Laws 1923. In that section it is provided that such allowance may be made to defendants brought in to a bill or petition in equity where the construction of a trust will or trust deed is sought. It is therein provided that such an allowance shall be taxed as costs in the suit. In Section 23, Chapter 381, Gen. Laws 1923, it is provided that in a suit for partition the “costs of partition” in such proportion as the court shall adjudge shall be a lien upon the interest of a party in the share assigned to him. In the early case of Cozzens v. Whitney, 3 R. I. 79, the expression “costs of partition” appears to have been interpreted by the court as meaning the taxable costs in the suit and as not including an allowance for counsel fees. But in the later cases Redecker v. Bowen, 15 R. I. 52, and Robinson v. Robinson, 24 R. I. 222, it was held that the costs of partition meant the expenses of partition and included reasonable counsel fees. In those cases the court distinguished between the cost or expenses of partition, and the costs by which it referred to the taxable costs in the suit.

Malcolm D. Champlin, for appellant.

Uldrich Peltine, for appellee.

In the statute relied upon by the appellees we find nothing warranting an interpretation of the word costs ” save as the taxable costs of the proceeding, which do not include an allowance for counsel fees.

The appellant’s exception is sustained. The case is remitted to the Superior Court with direction to enter a final decree in accordance with this opinion.  