Opinion
January 24, 1934.
PRESENT: Stearns, C.J., Rathbun, Sweeney, Murdock, and Hahn, JJ.
( 1) Equity. Allowance of Counsel Fees After Final Decree. On a cause certified to the supreme court as a bill in equity for the construction of a will and so considered and determined by the court, complainant sought an allowance for counsel fees on the ground that the answer of one of the respondents was in the nature of a cross-bill, making complainant a defendant and entitling him to the benefit of Gen. Laws, cap. 339, sec. 22: — Held, that the answer was not treated in the nature of a cross-bill and raised no question that was not raised by the bill and no relief was granted respondent except such as was incident to the determination of the question raised by the bill and complainant did not come within the terms of the statute.
BILL IN EQUITY for construction of will. Heard on appeal from decree allowing counsel fees after final decree. Appeal sustained.
Robert P. Beagan, for complainant.
Grim Littlefield, for respondents.
This is an appeal from a decree of the Superior Court allowing counsel fees after final decree was entered in said court by direction of this court. The facts are fully set forth in Gould v. Rhode Island Hospital Trust Co., 53 R.I. 422.
The allowance of counsel fees was made under the provisions of Section 22, Chapter 339, G.L. 1923, wherein it is provided that in any bill or petition in equity for the construction of a will a reasonable sum for expenses and counsel fees may be allowed to parties defendant brought in by such bill or petition.
The complainant seeks an allowance for counsel fees and expenses on the ground that the answer of the Rhode Island Hospital Trust Co. is in the nature of a cross-bill which makes him a defendant and consequently entitled to the benefit of the statute.
The cause was certified to this court as a bill in equity for the construction of a will. It was so considered and determined. The answer of the Rhode Island Hospital Trust Co. was not treated in the nature of a cross-bill. It raises no question that was not raised by the bill and no relief was granted to the respondent trust company except such as was incident to the determination of the question raised by the bill. Therefore the complainant does not come within the terms of the statute and is not entitled to an allowance for counsel fees.
The appeal is sustained and the decree appealed from is modified by striking out the award of counsel fees to Herman Ellis Gould. In all other respects said decree is affirmed.