Clarkson, J.
The questions involved: (1) "Whether or not the clerk of the Superior Court, with the approval of the judge, resident or presiding, has the power to direct and order a guardian to purchase a home in the name of the ward and for the sole use of a dependent of said ward, under the provisions of section 2202 (13), of the North Carolina Code of 1935 (Michie). We think so. (2) Whether or not the clerk of the Superior Court, with the approval of the judge, has the power to order a guardian to make fit and proper advancements out of the surplus of the ward’s estate or income to a dependent sister, under the provisions of sections 2296 and 2202 (14), of the North Carolina Code of 1935,
supra.
We think so. (3) Whether or not the clerk of the Superior Court, with the approval of the judge, has the power to order a guardian to pay the attorney fees of the petitioner, plaintiff. We think not.
The General Assembly of North Carolina, Public Laws 1929, ch. 33,. passed the “Veterans’ Guardianship Act.” This was amended by ch. 262,. Public Laws 1933. The amendment material to this controversy reads as follows: Section 1 (c). “. . . Provided, said guardian may purchase with said funds a home or farm for the sole use of said ward or
This dependents
upon petition and order of tbe clerk of Superior Court, said order to be approved by tbe resident or presiding judge of tbe Superior Court, and provided further that copy of said petition shall be forwarded to said Bureau before consideration thereof by said court.”' N. C. Code,
supra,
sec. 2202 (13).
N. C. Code,
supra,
sec. 2296, is as follows: “When any non-sane person, of full age, and not having made a valid will, has children or grandchildren (such grandchildren being the issue of a deceased child), and is possessed of an estate, real or personal, whose annual income is more than sufficient abundantly and amply to support himself, and to-support, maintain and educate the members of his family, with all the necessaries and suitable comforts of life, it is lawful for the clerk of the Superior Court for the county in which such person has his residence to order from time to time, and so often as may be judged expedient, that fit and proper advancements be made, out of the surplus of such income, to any such child, or grandchild, not being a member of his family and entitled to be supported, educated and maintained out of the estate of such person. Whenever any non-sane person of full age, not being married and not having issue, be possessed, or his guardian be possessed for him, of any estate, real or personal, or of an income which is more than amply sufficient to provide for such person, it shall be lawful for the clerk of the Superior Court for the county in which such person resided prior to insanity to order from time to time, and so often as he may deem expedient, that fit and proper advancements be made, out of the surplus of such estate or income, to his or her parents, brothers and
sisters,
or grandparents to whose support, prior to his insanity, he contributed in whole or in part.”
Section 2297 provides that such advancements shall be ordered only “for the better promotion in life of such as are of age or married,” etc.
The acts of the General Assembly are clear and explicit, and are sufficient to grant the relief prayed for by petitioner, the plaintiff. In fact, the act is the logic of the situation and righteous.
In the present proceeding it is admitted that the defendant, guardian of the insane or incurable veteran of the World War, has in its possession in the bank, as guardian, $22,046.81, a sum which, together with the income, is more than amply sufficient to provide adequately for all the needs of the ward. Under these circumstances, it is immaterial — and we need not decide — whether the sister is a dependent within the meaning of that term as used in the Veterans’ Guardianship Act.
It is clear that the petitioner comes within the terms of O. S., 2296. The advancements there provided for may be made in cash or by pro- ' viding a home free of rent. Here the clerk ordered, and the judge approved, advancements partly in cash and partly by providing a home.
Where the estate is sufficiently large to justify it, it makes no matter whether the sister is advanced cash with which to rent a home or is permitted to use a house purchased by and belonging to the estate.
The evidence offered is amply sufficient to support the conclusion of the clerk that the petitioner is entitled to aid from the estate of the ward •of the respondent.
The plaintiff petitioner offered in evidence envelope addressed to Daisy Rhem, R. 3, Grifton, N. C., dated Washington, D. C., 31 July, 1918, 10 p.m. On the left-hand corner of said envelope appears the following: “Treasury Department, Bureau of War Risk Insurance, Division of Military and Naval Insurance, Life Insurance Section, Official Business, Return after 5 days unopened.” On the right-hand corner of said envelope appears the following figures, “1816040,” and also certificate, dated 9 April, 1918, for $10,000 War Risk Insurance, in favor of Hosea Collins Rhem. She testified, in part: “After my brother went in the Army, I received through the mails moneys. . . . I have seen my brother since the war. He was in the hospital for the insane at Goldsboro. ... I do not have any property, and my husband does not have any, and I do not have any money. My husband is not living at home with me. He has been living away from me for some time at intervals. I have four children, two boys and two girls. One of the boys is twenty, and the other is sixteen years old. The oldest boy is married. One of my girls is eighteen, and the other fifteen years old, and one of them is in bad health.”
Henry Duggin testified, in part: “I knew Hosea Collins Rhem well, as we were schoolmates. ... I went to the war and I knew Daisy Rhem Patrick, sister of Hosea Collins Rhem. I saw them both often just before the war. I know that Hosea contributed to the support of his sister, Daisy Rhem Patrick. I used to go over there right much because he and I were going to school together, and I knew him well, and I know that he did all he could for her and gave her money at times and bought things for her. That is, he bought clothes. She was living with her uncle and Hosea helped her all he could. They both worked there for John Bryant. I know that Daisy looked to her brother, Hosea, for help, and I know that she called upon him for help. I quite often talked with him about his sister and did so just before he went into the Army.”
Cora Lowick Dunn testified, in part: “Hosea and Daisy lived with Bryant and worked. After they grew up, they lived with their uncle and Hosea helped his sister like he could. He helped her with work. . . . When Hosea worked, he divided his money with Daisy, that is, what he could. He didn’t get much, but what he got, he divided with his sister the best he could.”
Tbe petitioner offered in evidence letter from tbe United States Veterans Bureau at Washington, D. C., acknowledging receipt of copy of petition in tbis proceeding and signed by H. L. McCoy, Director of Insurance, dated 2 March, 1939. Tbe petitioner offered in evidence carbon copy of letter to State Service Officer, U. S. Veterans Administration, Charlotte, N.
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Clarkson, J.
The questions involved: (1) "Whether or not the clerk of the Superior Court, with the approval of the judge, resident or presiding, has the power to direct and order a guardian to purchase a home in the name of the ward and for the sole use of a dependent of said ward, under the provisions of section 2202 (13), of the North Carolina Code of 1935 (Michie). We think so. (2) Whether or not the clerk of the Superior Court, with the approval of the judge, has the power to order a guardian to make fit and proper advancements out of the surplus of the ward’s estate or income to a dependent sister, under the provisions of sections 2296 and 2202 (14), of the North Carolina Code of 1935,
supra.
We think so. (3) Whether or not the clerk of the Superior Court, with the approval of the judge, has the power to order a guardian to pay the attorney fees of the petitioner, plaintiff. We think not.
The General Assembly of North Carolina, Public Laws 1929, ch. 33,. passed the “Veterans’ Guardianship Act.” This was amended by ch. 262,. Public Laws 1933. The amendment material to this controversy reads as follows: Section 1 (c). “. . . Provided, said guardian may purchase with said funds a home or farm for the sole use of said ward or
This dependents
upon petition and order of tbe clerk of Superior Court, said order to be approved by tbe resident or presiding judge of tbe Superior Court, and provided further that copy of said petition shall be forwarded to said Bureau before consideration thereof by said court.”' N. C. Code,
supra,
sec. 2202 (13).
N. C. Code,
supra,
sec. 2296, is as follows: “When any non-sane person, of full age, and not having made a valid will, has children or grandchildren (such grandchildren being the issue of a deceased child), and is possessed of an estate, real or personal, whose annual income is more than sufficient abundantly and amply to support himself, and to-support, maintain and educate the members of his family, with all the necessaries and suitable comforts of life, it is lawful for the clerk of the Superior Court for the county in which such person has his residence to order from time to time, and so often as may be judged expedient, that fit and proper advancements be made, out of the surplus of such income, to any such child, or grandchild, not being a member of his family and entitled to be supported, educated and maintained out of the estate of such person. Whenever any non-sane person of full age, not being married and not having issue, be possessed, or his guardian be possessed for him, of any estate, real or personal, or of an income which is more than amply sufficient to provide for such person, it shall be lawful for the clerk of the Superior Court for the county in which such person resided prior to insanity to order from time to time, and so often as he may deem expedient, that fit and proper advancements be made, out of the surplus of such estate or income, to his or her parents, brothers and
sisters,
or grandparents to whose support, prior to his insanity, he contributed in whole or in part.”
Section 2297 provides that such advancements shall be ordered only “for the better promotion in life of such as are of age or married,” etc.
The acts of the General Assembly are clear and explicit, and are sufficient to grant the relief prayed for by petitioner, the plaintiff. In fact, the act is the logic of the situation and righteous.
In the present proceeding it is admitted that the defendant, guardian of the insane or incurable veteran of the World War, has in its possession in the bank, as guardian, $22,046.81, a sum which, together with the income, is more than amply sufficient to provide adequately for all the needs of the ward. Under these circumstances, it is immaterial — and we need not decide — whether the sister is a dependent within the meaning of that term as used in the Veterans’ Guardianship Act.
It is clear that the petitioner comes within the terms of O. S., 2296. The advancements there provided for may be made in cash or by pro- ' viding a home free of rent. Here the clerk ordered, and the judge approved, advancements partly in cash and partly by providing a home.
Where the estate is sufficiently large to justify it, it makes no matter whether the sister is advanced cash with which to rent a home or is permitted to use a house purchased by and belonging to the estate.
The evidence offered is amply sufficient to support the conclusion of the clerk that the petitioner is entitled to aid from the estate of the ward •of the respondent.
The plaintiff petitioner offered in evidence envelope addressed to Daisy Rhem, R. 3, Grifton, N. C., dated Washington, D. C., 31 July, 1918, 10 p.m. On the left-hand corner of said envelope appears the following: “Treasury Department, Bureau of War Risk Insurance, Division of Military and Naval Insurance, Life Insurance Section, Official Business, Return after 5 days unopened.” On the right-hand corner of said envelope appears the following figures, “1816040,” and also certificate, dated 9 April, 1918, for $10,000 War Risk Insurance, in favor of Hosea Collins Rhem. She testified, in part: “After my brother went in the Army, I received through the mails moneys. . . . I have seen my brother since the war. He was in the hospital for the insane at Goldsboro. ... I do not have any property, and my husband does not have any, and I do not have any money. My husband is not living at home with me. He has been living away from me for some time at intervals. I have four children, two boys and two girls. One of the boys is twenty, and the other is sixteen years old. The oldest boy is married. One of my girls is eighteen, and the other fifteen years old, and one of them is in bad health.”
Henry Duggin testified, in part: “I knew Hosea Collins Rhem well, as we were schoolmates. ... I went to the war and I knew Daisy Rhem Patrick, sister of Hosea Collins Rhem. I saw them both often just before the war. I know that Hosea contributed to the support of his sister, Daisy Rhem Patrick. I used to go over there right much because he and I were going to school together, and I knew him well, and I know that he did all he could for her and gave her money at times and bought things for her. That is, he bought clothes. She was living with her uncle and Hosea helped her all he could. They both worked there for John Bryant. I know that Daisy looked to her brother, Hosea, for help, and I know that she called upon him for help. I quite often talked with him about his sister and did so just before he went into the Army.”
Cora Lowick Dunn testified, in part: “Hosea and Daisy lived with Bryant and worked. After they grew up, they lived with their uncle and Hosea helped his sister like he could. He helped her with work. . . . When Hosea worked, he divided his money with Daisy, that is, what he could. He didn’t get much, but what he got, he divided with his sister the best he could.”
Tbe petitioner offered in evidence letter from tbe United States Veterans Bureau at Washington, D. C., acknowledging receipt of copy of petition in tbis proceeding and signed by H. L. McCoy, Director of Insurance, dated 2 March, 1939. Tbe petitioner offered in evidence carbon copy of letter to State Service Officer, U. S. Veterans Administration, Charlotte, N. C., dated 18 February, 1939, signed by Allen & Allen, attorneys, and which reads as follows: “We beg to enclose herewith copy of petition filed in the Superior Court of Lenoir County. This copy is being sent in pursuance of chapter 40 (a) of North Carolina Eevised Code of 1935. We shall ask that the petition be heard on March 3, 1939.”
The defendant excepted and assigned error to the allowance of attorney fees for plaintiff-petitioner. This is the only error revealed by the assignments of error. In neither brief filed herein are any authorities cited approving the allowance of attorney fees in circumstances similar to the present case. As well stated in
Parker v. Realty Co.,
195 N. C., 644 (646): “The general rule is stated in
Ragan v. Ragan,
186 N. C., 461, ‘Attorneys’ fees are not recoverable by successful litigants in this State, as such are not regarded as a part of the court costs.’ ” Again, in
In re Will of Howell,
204 N. C., 437, citing numerous authorities, “Accordingly, it may be stated as the general rule in this jurisdiction that counsel fees, as such, are not allowed as a part of the costs in civil actions or special proceedings.” There are recognized exceptions to this rule where courts, in the exercise of chancery or statutory powers, are aiding certain fiduciaries in the management of estates or trusts (see
In re Will of Howell,
204 N. C., 437 [438]; and the cases there cited), as, for example, the allowance of fees to an administrator’s attorney
(Overman v. Lanier,
157 N. C., 544), to the attorney for the next friend of an infant
(In re Stone,
176 N. C., 336), to the attorney for the receiver of an insolvent corporation
(Graham v. Carr,
133 N. C., 449;
Hood, Comr. of Banks, v. Cheshire,
211 N. C., 103), these, and the other cases examined, permitted the allowance of attorneys’ fees for services rendered in the protection of the trust funds; we have found no cases in this jurisdiction in the absence of statutes permitting fees to attorneys who were successful in adverse proceedings directed against the trust estate. That there is a distinction between services rendered in the protection of a trust estate and those rendered by attorneys successfully establishing claims against such estates is made clear by two cases in our Beports. In
Wells v. Odum,
207 N. C., 226,
it is held
that attorneys’ fees for the successful propounders of a will are allowable out of the assets of the estate, whereas, in
In re Will of Howell,
204 N. C., 437,
it was held
that attorneys’ fees for caveators of a will may not be ordered paid out of the assets of the estate (now
contra
by statute, see
In re Will
of Slade,
214 N. C., 361). In the
Howell case, supra,
in discussing the lack of precedent for ordering payment of caveators’ attorneys’ fees out of the funds of the estate, this Court said: “Nor is the authority supported in tendency by our decisions. They point in the other direction.” This quoted statement is equally true of the present case. As the instant case is a statutory proceeding, in the absence of statutory authority for taxing the fees of attorneys successfully proceeding against the fund in the costs of the proceeding, we hold the general rule to be determinative,
i.e.,
such fees may hot be allowed from the assets of the estate.
In accordance with the above opinion, the judgment below is
Modified and affirmed.