Rehearing denied March 16, 1926. ON PETITION FOR REHEARING. (244 P. 664.) Respondents, Royal and Huntington, Wilson and Huntington, have presented a petition for rehearing earnestly urging that this court erred in holding that the services rendered by them did not benefit the estate. They invoke the rule that since the evidence taken was not brought here, this court should have adopted the finding of the learned Circuit Court that said services did benefit the estate. The record before this court shows on its face that those services could not have benefited the estate. The situation is analogous to a case where the complaint fails to state a cause of suit. This court held inState v. Henkle, that:
"An administrator de son tort is not entitled on an accounting to an allowance for sums paid to a surety company for becoming surety on his bond, or for appraisers' and justices' services in taking acknowledgments, nor for services rendered by him or his attorneys, unless such services were rendered in the preservation of the property of the estate, and were conducive to its benefit." 45 Or. 430 (78 P. 325), par. 4 of the syllabus.
Labbe was a volunteer and not entitled to any remuneration for his services: 28 Am. Eng. Ency. (1 ed.) 499, quoted inState v. Henkle, above, in pp. 435, *Page 513 436 of the official report. His agents and attorneys can be in no better position in relation to their compensation.
It is the rule of practice that costs follow the result unless the opinion directs otherwise. The petition for rehearing is denied. REHEARING DENIED.
McBRIDE, C.J., and BROWN and BELT, JJ., concur. Costs taxed March 30, 1926. ON OBJECTIONS TO COST BILL. (244 P. 664.) Respondents Royal and Huntington Wilson have presented objections to the cost bill filed by appellant, administratrix. Their contention is that there was "no controversial point" between Vivian Waller as administratrix and them, "as the matter was not one existing between the said parties as such." They presented in regular form to the administratrix claims which were rejected. The claims were then presented to the Circuit Court in probate. The claims were allowed in part and judgment rendered as prescribed in Section 1242, Or. L. Section 1241, Or. L., prescribes:
"The court shall have power to hear and determine in a summary manner all demands against any estate agreeable to the provisions of this act, and which have been so rejected by the executor or administrator, *Page 514 and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases; * *."
Section 1137, Or. L., prescribes:
"Costs may be awarded in favor of one party against another, to be paid personally or out of the estate or fund, in any proceedings contested adversely, but such costs cannot exceed those allowed in the trial of a civil action in the county court. Witness fees and other disbursements similar to those allowed on the trial of a civil action may also be allowed, to be paid in like manner. Orders or decrees for the payment of money may be enforced by execution, or otherwise, in the same manner as orders or decrees for the payment of money in the circuit court."
This section places contested claims against an estate in the same class as other money demands. Messrs. Royal and Huntington Wilson stand in the shoes of plaintiffs in an ordinary action for money in this court.
They do not raise the question in their objections to the cost bill, but it appears that the administratrix demands $2 per page for her abstract and brief. The maximum allowed is $1.25 per page: 100 Or. 754; Rule 39. The costs are retaxed to comply with this rule. COSTS TAXED. *Page 515