delivered the opinion of the court.
The main ground relied upon by counsel for the trustees for a reversal of the order is in substance that solicitors’ fees should not be allowed and taxed as costs to be paid out of the funds of a trust estate, in a chancery proceeding for the assignment of dower, even though in that proceeding the construction of the will of the testator which created the trust estate may be incidentally involved.
In Wilson v. Clayburgh, 215 Ill. 506, the question involved was whether a court of chancery, in the exercise of its equitable jurisdiction, can allow and Xtax as costs the solicitor’s fees of the solicitor for a beneficiary under a trust created by a will who brings a suit to have the resignation of the trustee named in the will accepted and a new trustee appointed in his place, and our Supreme Court answered that question in the negative. In the opinion the court said (pp. 507-8):
“It has been repeatedly held in this State that nothing can be allowed and taxed as costs by the clerk or the court but items of cost designated by the statute to be so allowed and taxed. (Citing cases.) The only exception to this rule in this State is in cases brought by trustees for the construction of wills, where a will is so ambiguous as to make it necessary to go into a court of chancery to obtain a construction thereof, in which class of cases the costs of the litigation must be borne by the estate. Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338; Ingraham v. Ingraham, 169 Ill. 432; Arnold v. Alden, 173 Ill. 229.
• “It is urged with much earnestness that the same reason obtains in this case for the allowance of a solicitor’s fee to complainant’s solicitor to be taxed as costs and paid out of the estate, that exists in the case of a bill filed for the construction of a will which is ambiguous. Such has not been the holding of the courts (In re Holden, 126 N. Y. 589), and this court could not so hold without legislating upon the subject. The question here presented has been before this court in partition suits (citing cases), where the litigation often may be as beneficial to the defendant as to the complainant; but the uniform holding has been, in those cases, that the court cannot allow and tax a solicitor’s fee in the absence of a statute authorizing it so to do, and the same conclusion has been reached in foreclosure cases.” (Citing cases; and see also, Metropolitan Life Ins. Co. v. Kinsley, 269 Ill. 529, 530; Rasch v. Rasch, 278 Ill. 261, 275; Patterson v. Northern Trust Co., 286 Ill. 564, 568.)
Such have been the holdings in this State, where the jurisdiction of the circuit court is invoked in a chancery proceeding to malee partition of lands even though the construction of a will is involved. (Kendall v. Taylor, 245 Ill. 617.) In that case the bill prayed for a partition of the lands. After issues were joined and a hearing had the chancellor ordered the partition to be made but determined the interests of complainants in the land to be different from that prayed for by them and they appealed. The case turned upon the proper construction of the will of Francis M. Kendall, which was ambiguous and required construction, and the principal contention on appeal was whether the chancellor in the decree had properly construed the will. The Supreme Court decided that he should have entered a decree partitioning the lands in accordance with the prayer of the bill. It also appears that the chancellor had taxed the solicitor’s fees of appellees’ counsel as costs; that on appeal counsel for appellants contended that the chancellor had erred in so doing; and that although it was admitted that the fees were reasonable for the work performed they argued that appellees should personally pay those fees. The contention was sustained, the court saying (p. 621):
“The general rule is, that when the testator has expressed his intention in his will so ambiguously as to make it necessary to go into a court of chancery to get a construction of the will in order to determine which of two or more adverse claims to the same fund or property is valid, the costs of the litigation should be borne by the fund or property in question. (Citing cases.) This is not a bill for the construction of a will but for the partitioning of real estate. No trust was created by" the will and no grounds are alleged in the bill that would give a court of equity jurisdiction in the case except that partition is sought of the lands of testator. Under the rules governing the allowance of solicitor’s fees in partition proceedings, appellees are not entitled to the payment of such fees out of the funds of the estate. (Citing cases.) On the facts shown on this record the circuit court erred in allowing solicitor’s fees to appellees.”
We regard the Kendall case as particularly in point in the present controversy. In that case, although the construction of the will of the testator was involved, the only ground alleged in complainant’s bill, giving jurisdiction to a court of equity, was that partition of certain lands of the testator was sought. In the case at bar the jurisdiction of the court was invoked solely for the purpose of having complainant’s dower assigned. If it be said that the present case can be distinguished from the Kendall case, in that in the one a trust was created by the will while in the other no trust was so created, it is a sufficient answer, we think, to say that in the bill in the present case complainant did not allege the existence of said trust as a ground for the court’s jurisdiction. Her petition prayed solely for the assignment of dower under the statute (section 18, ch. 41, Cahill’s Ill. St.). Furthermore, the action was brought solely in her own interest.
The contention of counsel for the trustees is further supported, we think, by the case of Tincher v. Arnold, 147 Fed. 665, decided by the U. S. Court of Appeals for the Seyenth Circuit, where an heir of the testator sought to have the will construed and certain trust provisions held to be invalid. The trial court held the trust provisions to be valid, as creating a good charitable use, and dismissed the bill for want of equity. Complainant also petitioned the court to allow her the amount paid for solicitors’ fees on the grounds that her solicitors had rendered valuable and important services to the value of $1,500, that the will was ambiguous and that application to the court was necessary to obtain a construction thereof. The petition was denied on the ground that complainant was suing in her own right and not for benefit of the trust estate. The decrees were affirmed by the Court of Appeals. In the opinion (p. 677), the court adopted certain conclusions of the trial court, which are set out in full and to which reference is made, and further said: “It is the appellant’s claim to the estate, founded on the position that the trust provision is invalid, which gave the circuit court jurisdiction. The fact that such claim renders a construction of the will necessary does not entitle appellant to counsel fees, because the jurisdiction depends on her claim as heir, and not on her right to have, incidently, a construction of the will.”
An examination of the cases of Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338, Ingraham v. Ingraham, 169 Ill. 432, and Arnold v. Alden, 173 Ill. 229 (cited in the opinion in Wilson v. Clayburgh, supra), discloses that the jurisdiction of the chancery court was invoked ih those cases for the express purpose of securing a construction of the will in.question, and that the action was brought by the parties named in the will, either executors, beneficiaries or heirs, or trustees. In the present case complainant was not a beneficiary under the will. She did not become a member of the Witbeck family until more than three years after the probate of the will. The testator died on April 12, 1891, the will was probated on April 22, 1891, and complainant married Frank M. Witbeck on September 12, 1894. The case of Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338, is apparently the leading case in this State in enunciating the exception to the general rule as to taxation of costs mentioned in the opinion in Wilson v. Clayburgh, supra, and in said Mead case, it is said, quoting from Smith v. Smith, 4 Paige Ch. 271, at page 375: “As a general rule, if the testator has expressed his intention so ambiguously as to create a difficulty, which makes it necessary to come into the court of chancery to give a construction to the will or to remove the difficulty, the costs of the litigation must be borne by the estate, and the general residue is the primary fund for the payment of such costs.” Among other subsequent cases in this State, in which said exception to said general rule as to the taxation of costs is referred to and solicitors’ fees allowed out of the funds of the estate, may be mentioned: McLean v. Thomas, 159 Ill. 227, 236; Dean v. Northern Trust Co., 266 Ill. 205, 210; Guerin v. Guerin, 270 Ill. 239, 250; Strickland v. Strickland, 271 Ill. 614, 621; Haight v. Royce, 274 Ill. 162, 172; Ward v. Caverly, 276 Ill. 416, 423; Field v. Field, 297 Ill. 379, 391. It is, however, to be noticed that in each of these cases the jurisdiction of the chancery court was invoked by a beneficiary under a will and that in almost all of the bills", as filed, a construction of the will was specifically prayed for.
It is also contended by counsel for the trustees in substance that the order appealed from should be reversed because the will in question had already been construed in the prior proceeding of Lombard v. Witbeck, 173 Ill. 396, brought by the trustees for that express purpose, and in which proceeding solicitors’ fees had been allowed and paid out of the estate; that in the bill filed by complainant for the assignment of her dower under the statute she relied upon that construction of the will so obtained in said prior proceeding as appears from certain allegations in her bill; that a further construction of the will was unnecessary; and that solicitors’ fees should not be taxed as costs against the estate a second time, even though opposing counsel differed as to the meaning and effect of the final decree, entered in said cause of Lombard v. Witbeck after remandment and after said will had been finally construed by the Supreme Court in its said decision (173 Ill. 396). In view of the decision of Wilson v. Clayburgh, supra, as to the general rule in this State as to the taxation of costs in a chancery proceeding, viz., that solicitors’ fees cannot be taxed as costs in the absence of a statute authorizing it to be done, except in the case of the one exception mentioned; in view of the fact that complainant in her bill did not pray for any further construction of the will other than that already given in said cause of Lombard v. Witbeck, and upon which she relied in making claim for the assignment of her dower; in view of the further fact that her bill was filed solely in her own interest; and in view of the decisions of Kendall v. Taylor, supra, and Tincher v. Arnold, supra, and the decision and opinion of our Supreme Court in the present cause (298 Ill. 404), to which reference has been made in the above ‘ ‘ Statement by the Court,” we are of the opinion that there is merit in the contention of counsel. (See also, Board of Administration v. Stead, 259 Ill. 194, 210; Stevenson v. Stevenson, 285 Ill. 486, 500.)
Our conclusion is that the order appealed from should be reversed and the cause remanded with directions to the superior court to dismiss complainant’s petition for solicitors’ fees, and it is so ordered.
Reversed and remanded with, directions.
Fitch and Barses, JJ., concur.