The opinion of the court was delivered, by
Agnew, J.In Robb’s Appeal, 5 Wright 49, our brother Strong said that ordinarily 3 per cent, is a sufficient compensation for the sale of real estate; and stated that we are not disposed to disturb the finding of an auditor ratified by the court, without affirmative evidence convincing us of plain error. Compensation is so much governed by the circumstances that no unbending rule can be fixed as to the rate of percentage. We are not satisfied the allowance of 3 per cent, in this instance is too little. See also McCausland’s Appeal, 2 Wright 466; Lukens’s Appeal, 11 Id. 356.
The second error assigned has more in it. The auditor allowed Mr. Ernst $500, and Mr. Parsons $250 as fees for professional services rendered in a proceeding in partition, under the Act of 27th April 1864, which is in these words: “ The costs, in all cases of partition in the Common Pleas or Orphans’ Court of this Commonwealth, with a reasonable allowance to the plaintiff or *70petitioner for counsel fees, to be taxed by the court or under its direction, shall be paid by all the parties in proportion to their several interests.” The interpretation of this law is plain both from its language and design. That which is to be allowed is costs in the partition, and these, with a reasonable compensation, are to be taxed by the court. Costs, as all know, are the taxed e-xpenses of a case, and here the reasonable allowance is to be taxed with the costs, and then to be paid by the parties in proportion to their several interests. There was an actual partition in this case, and six allotments out of seven accepted. Only one was ordered to be sold, and out of the proceeds of this one-seventh the controversy before us has arisen. The costs of the partition, including the reasonable attorneys’ fee, belonged to the whole partition, and not to this sale merely. Before the executor was ordered to sell the rejected purpart, he had nothing to do with the case, and the attorney had no claim against him for fees. That claim was against the parties in the partition, according to their several interests. The executor, therefore, had no right .to pay the attorney fees, except so far as the court might order them to be paid out of the proceeds of sale.as a part of the costs of the partition. He had no more to do with them than he had with the clerk’s or sheriff’s fees. All the costs were to be taxed, including the reasonable allowance to the attorney; and as they were to be paid by the parties in the partition, the taxation must be according to the rules of the court for taxing costs. The design of the law was to place the parties upon an equality as to the expense of effecting partition among them. Owing to minority, coverture and other causes, the proceeding in partition may be indispensable; and yet the party, no matter how small his interest, was compelled to pay attorney’s fees for conducting them to a conclusion as beneficial to others as to himself. The law was intended to remedy this injustice, but it was not designed to pay the fees of mere litigation, so that a litigant should saddle the cost of his litigation on others. Hence the law fixed the compensation as a reasonable one, to be taxed by the court. This enables the court to see that only the proper charge is made. The finding of the auditor and confirmation of the court on this point must be reversed in order that the report can go back to give an opportunity of taxing a reasonable fee in the partition. Then if the court should believe the charge proper to be paid out of the proceeds of the sale of the single purpart, of which we have no means of judging, an order can be made upon the executor to pay the same out of the moneys in his hands and credited in his account.
As to the auditor’s fees, we are unable to say that they should not be allowed. He has omitted to state the whole number of *71meetings and other facts which might display the extent of his labor. It looks somewhat high, and yet may not be so. Having no satisfactory evidence furnished against it, and the court below having allowed it, we ought not to disturb it. But if it be a custom, as asserted in the argument, to allow any charge an auditor may deem it proper to make, it is a bad one, and should be abolished. No delicacy to the profession should suffer an allowance to be made which conflicts with justice and the rights of parties. The necessity which brings estates into the courts for settlement should not be a signal for plundering them of that which death and bereavement have left to the owners. The helpless condition of the parties needs that they should be protected from rapacity, especially at the hands of those to whom a duty has been committed. These remarks are not intended for this case, for the evidence does not warrant it, but are made in view of what is said to be the custom of charging auditor’s fees.
And now, January 17th 1867, the court confirm the decree of the Orphans’ Court, excepting that part allowing the fees of the attorney in the partition. This allowance is reversed, and the record ordered to be remitted to enable the said court to take such further proceedings relating to the same as shall be necessary and lawful. and in accordance with the principles set forth in the opinion of this court. The costs of the appeal in this case are ordered to be paid by the appellees.