Boynton v. Tarbell

• Decision Date: 31 July 1930
• Citation: 272 Mass. 142,172 N.E. 340
• Parties: BOYNTON v. TARBELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 142

172 N.E. 340

BOYNTON

v.TARBELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 31, 1930.

Appeal from Probate Court, Middlesex County; C. N. Harris, Judge.

Petitioner by Bertha F. Boynton, executrix and trustee, against Lizzie D. Tarbell and others, for instructions as to the meaning of certain clauses in a will. From the decree, plaintiff appeals.

Reversed.

P. D. Turner, of Boston, for Beatrice W. Boynton.

S. M. Salny, of Fitchburg, for Bertha F. Boynton, executrix and trustee.

F. M. Qua and H. A. Brown, both of Lowell, for Adelaide L. Tarbell, administratrix.

RUGG, C. J.

This is a petition for instructions as to the meaning of certain clauses in a will. There were several more or less adversary parties, each represented by counsel. The case was decided on its merits in 165 N. E. 489. The rescript following that decision, after disposing of the issues raised, contained this clause: ‘Costs as between solicitor and client to be in the discretion of the judge of probate.’ After that rescript a decree was entered by that judge. It contains no recital of a hearing on the question of such costs. It further orders that there be allowed from the estate ‘costs as between solicitor and client’ to each of four named solicitors, a specified sum for services set opposite the name of each solicitor, in two instances an additional sum for expenses and disbursements and in one instance an additional sum for disbursements. The executrix and trustee appealed in her official capacity and as an individual party in interest.

The phrase of the rescript, timehonored and in common use, is that costs as between solicitor and client are to be taxed. The word ‘costs' in connection with proceedings in courts imports an allowance to a party by way of either penalty against a defeated party of indemnity to a victor. It is an incident of litigation. So far as awarded to the successful party, costs are designed to mitigate to a greater or less extent the necessary expenses incurred in the conduct of litigation. Dahlstrom Metallic Door Co. v. Evatt Construction Co., 256 Mass. 404, 417, 418, 152 N. E. 715. This is the nature and purpose of costs whether founded on express statute or awarded by the courts in the exercise of their general jurisdiction. Burrage v. County of Bristol, 210 Mass. 299, 96 N. E. 719;Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 147 N. E. 878. It is of the essence of costs in law that they go to a party in litigation. There is no foundation in reason, considering the nature and purpose of costs, to award costs to any one other than a party. Authorities in other jurisdictions are to that effect. Henry v. Superior Court, Nevada County, 93 Cal. 569, 29 P. 230;In re Knowles, 23 N. H. 193, 197. Expenses of surveys and plans in appropriate cases may be taxed as costs. But it would seem absurd to order that item paid directly to the civil engineer instead of to the party who had employed him.

The allowance of costs to be taxed ‘as between solicitor and client’ means that this item of costs to be paid out of the fund is to be ascertained by consideration of the relation between the party thus entitled to costs, as client, and the attorney at law employed by him to conduct the litigation. The use of the word ‘solicitor’ in this connection carries no implication that the solicitor is to be awarded the costs. It only directs attention to him as the one with reference to whom the party has been caused expense. The amount to which the party is entitled is to be calculated with regard to his attorney. Since there is no mathematical yardstick by which to measure that item of costs, as there is to ascertain taxable costs under G. L. c. 261, §§ 23, 26, [272 Mass. 145]27, it must be determined by the judge. As was decided long ago, the full amount charged by counsel to his client is not necessarily to be allowed. The general rule is that the compensation paid to public officers for services of a similar character constitutes the standard, subject to such variations in a particular case as may be determined in the exercise of wise discretion having regard to all pertinent factors. Frost v. Belmont, 6 Allen, 152, 165. Counsel fees are awarded not as separate and distinct from costs but as a part of costs. They constitute one item in taxing costs. It is the design of such direction not to require the court to determine the amount of fees which the client should pay his counsel but only to determine that item of costs. Costs belong to the party or client and not to the attorney. Dwyer v. Ells, 208 Mass. 195, 94 N. E. 286,21 Ann. Cas. 1042;Bruce v. Anderson, 176 Mass. 161, 163, 57 N. E. 354. In other jurisdictions the same decision has been made where attorney fees have been included in costs. Vaughan v. Humphreys, 153 Ark. 140, 239 S. W. 730, 22 A. L. R. 1201;Matter...