APPEAL from the Circuit Court of Shelby County; the Hon.
RAYMOND O. HORN, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the Circuit Court of Shelby County, (a) awarding attorney fees and other costs to plaintiff-appellee, operator of a grain elevator which as plaintiff filed an interpleader proceeding to determine who was to receive the proceeds of sale of crops planted and growing on farm land, subject to a life estate, which crops had not ripened and were not harvested at the time of the death of the life tenant; and (b) ordering that there be a pro rata distribution of the remaining proceeds of the sale of said crops between the estate of the life tenant on the one hand, and the remaindermen on the other hand.
The parties have presented a stipulation of facts which clearly and concisely sets out all the facts necessary for the determination of this appeal.
Ernest H. Johnson died testate on October 16, 1961, and devised to his wife, Pearl K. Johnson, hereafter called Life Tenant, a life estate in 65 acres of farm land in Shelby County, Illinois, and subject to said life estate the remainder interest was devised to Noble Johnson and Bernadine M. Hunter, hereafter called Remaindermen, the appellants herein. The life tenant leased this land to a farm tenant on a yearly crop sharing basis, same beginning on March 1, 1969.
The life tenant, died on August 12, 1969, at which time a crop of corn and soybeans was growing on the 65 acre tract and the landlord's share thereof, having a value of $3,209.82, was thereafter harvested and was delivered to the elevator of the appellee, Ralston Purina Company, hereafter called Ralston.
The life tenant, prior to her death, had paid for the landlord's share of the fertilizer used in producing said crop, which amounted to the sum of $152.15.
The Remaindermen, herein, paid the 1969 real estate taxes on said 65 acre tract in the amount of $714.12.
Inasmuch as the life tenant and the remaindermen could not agree as to the disposition of the proceeds of the landlord's share of said crop of corn and soybeans, thereupon appellee, Ralston, instituted an Interpleaded proceeding in the Circuit Court of Shelby County, Illinois, and paid said sum of $3,209.82 to the Clerk of the Court, and made the claimants to said fund, namely, appellee, Roy B. Killam as Executor of the Estate of the Life Tenant, on the one hand and appellants, the Remaindermen as defendants thereto.
The appellee, Ralston, asked the court to award to it, the moneys it had advanced for filing fee and sheriff's fee, and also asked the court to award to Ralston a reasonable attorney fee, which was stipulated to be the sum of $250.
The trial court in its opinion held that: (A) Ralston was first entitled to be paid the filing fee and sheriff's fee advanced by it in the sum of $55.80, plus its attorney fee in the amount of $250.00; and (B) that the Principal and Income Act was not applicable, and had not repealed Section 36 of the Landlord and Tenant Act, by implication or otherwise, and that inasmuch as the Life Tenant had lived 164 days of the lease period, that therefore the Estate of the Life Tenant was entitled to receive 164/365 of the landlord's share of the 1969 crop money, plus 201/365 of the fertilizer expenses advanced by the Life Tenant during her lifetime, less 164/365 of the 1969 real estate taxes paid by the Remaindermen, and that the Remaindermen were entitled to receive 201/365 of the landlord's share of the crops, less 201/365 of the fertilizer costs paid by the Life Tenant, plus 164/365 of the 1969 taxes so paid by the Remaindermen.
The appellant Remaindermen admit that appellee Ralston is entitled to first recover out of the impounded funds, the filing fee and sheriff's fee advanced by it in the amount of $55.80, but deny that appellee, Ralston is entitled to recover therefrom any attorney fees, and assert that all of the impounded funds, less only the sum of $55.80 due to appellee, Ralston and less the fertilizer bill of $152.15 due to the appellee, Estate of the Life Tenant, should be paid to Appellant Remaindermen.
• 1 Appellants contend that there is neither statutory nor case law authority for the allowance of attorney fees on a set of facts such as are here presented. Their position is supported by a line of cases, the latest of which is Curran v. Harris Trust & Savings Bank, 2 Ill. App.2d 395, 119 N.E.2d 483, which is based on the discussion of the question by our Supreme Court in Metropolitan Life Insurance Co. v. Kinsley, 269 Ill. 529, at 530, an interpleader proceeding, in which it was said:
"The general rule has always prevailed in this State that solicitor's fees could not be taxed as costs in chancery suits without statutory authority; that while a court of equity had discretion in awarding costs it must confine that discretion to the fees authorized by statute. [Citing cases.]"
Appellee Ralston contends that under Ch. 33, sec. 18, Ill. Rev. Stat., 1969, which allows a court discretion in allowance of costs and Firemen's Insurance Co. of Newark v. Newell, 10 Ill. App.2d 371, at 375, 135 N.E.2d 116, at 118, which holds discretion in assessment of costs is reviewable and may be reversed if the discretion is abused, is here applicable and that there was no abuse of discretion since the parties stipulated to the reasonableness of the proposed fee. The argument overlooks the fact that the parties did not stipulate that attorney ...