Petition for rehearing denied February 16, 1932 ON PETITION FOR REHEARING (7 P.2d 975) The appellants have filed a petition for a rehearing, wherein they state, in part:
"The petition of respondent herein is, in effect, a petition for rehearing as to allowance of attorneys' fees. The unjustifiable attack made upon petitioners and their counsel by respondent makes it a point of honor with counsel that we be accorded by this court a re-examination of our briefs in connection with its opinion herein. We confidently believe that such examination will not only disclose the good faith and merit of our case, but will lead to a vacation of the opinion. The authorities justify such rehearing, and courtesy to counsel in the face of a baseless attack by a litigant who is an ungracious winner dictates that a thorough re-examination of the premises of the opinion be had by this court in bank. We ask no more. We are entitled to no less."
For a statement of the case and the law applicable thereto, see our original opinion. The suit involved the construction of the last will and testament of Lewis Russell Fields, deceased. The paragraphs of the will around which the case revolves are set out in full in our opinion. It is the contention of the appellants that the estate bequeathed and devised by paragraph 3 of the will was subsequently diminished and cut down by a later provision of that instrument, while the respondents contend that the testator neither intended to cut down, nor did cut down or debase, the fee simple estate willed to his wife.
In our original opinion we approved and followed the rule set down in I Underhill on the Law of Wills, § 358, in the following language:
"Where an absolute gift is given in clear and expressive, or, as sometimes expressed, in positive and *Page 54 decisive language, the rule of construction is that the interest thus given shall not be taken away, cut down, limited or diminished by subsequent vague and general expressions. In other words, any subsequent expression of intention of the testator must, in order to limit the prior gift, be equally clear and intelligible, and indicate an intention to that effect with reasonable certainty."
We again subscribe to this doctrine. We are satisfied that it is in harmony with the great weight of authority.
With relation to the costs and expenses incurred by them, the appellants state that, in addition to the amounts set out in cross-appellant's cost bill on file herein, "cross-appellant and appellants incurred the additional sum of $37.50 as the usual and necessary cost of printing a petition and brief for a rehearing herein." This can avail the appellants nothing. Rule 25 of the Rules of the Supreme Court, found in 123 Or. 689, reads:
"No disbursement will be allowed in favor of either party for a petition or briefs on an application for a rehearing."
In reference to the claim for attorney's fees by the losing party to this litigation, we direct attention to the holding of this court in the case of In re Gratton's Estate, 136 Or. 224 (298 P. 231), to the effect that "the right of an attorney at law to collect compensation for his services depends upon the fact of his employment." Also, see In re Faling's Estate, 113 Or. 6 (228 P. 821, 826, 231 P. 148), where we approved and quoted the following from 2 R.C.L., p. 954:
"The creation of the relation of attorney and client by contract express or implied is essential * * *. The essential feature of the professional relation is *Page 55 the fact of employment to do something in the client's behalf. There must be an agreement, express or implied, for compensation."
In the case of In re Gratton's Estate, supra, we quoted with approval the following instructive excerpt from 2 Thornton on Attorneys at Law, § 514:
"It is well settled that the employment of counsel by one of several heirs or legatees will not, of itself, create a liability on the part of the other heirs or legatees for the compensation of the counsel so employed, even though his services were beneficial to all of them, excepting where they have resulted in bringing a fund into court, and, under the local law, attorney fees may be allowed therefrom. Nor will the employment of an attorney by an heir or legatee create a liability on the part of the estate involved."
See, also, Weeks on Attorneys at Law (2d Ed.), § 339.
No fund was brought into court by the applicants in the instant case. It follows, therefore, that attorney fees cannot be allowed to them out of the estate covered by the will in question. SeeUpham v. Bramwell, 105 Or. 597 (209 P. 100, 210 P. 706, 25 A.L.R. 919).
This is not a will contest, nor does the litigation arise from the use of obscure language by the testator in making his disposition of his real and personal property. After a careful reading and deliberate study of the record and the authorities relied upon by the appellants, we find nothing that would authorize us to hold that the testator said one thing in plain language in his will and at the same time meant to say something else. The will itself stands as the best exposition of its meaning.
Considerable has been said in the petitions on file with relation to the character of the attorneys for petitioners. *Page 56 Doubtless the charges against counsel were made in hot blood and without deliberation. In our original opinion we alluded to the marked ability and industry of appellants' counsel. We have not changed our opinion in that regard. Moreover, we add that we believe counsel to be honorable and upright and conscientious in their labors.
The petition for a rehearing will be denied.
BEAN, C.J., BELT and CAMPBELL, JJ., concur. *Page 57