Oliver Wendell Holmes, Jr.

“ The only just alternative would be to charge counsel fees as costs against the losing party, which would have been less favorable to the appellant. The general proposition is not disputed, but it is said that in this case the legatees retained the counsel and therefore ought to pay them. The other legatees as well as the administrator no doubt had a share in calling the counsel in. But that did not matter. The services were services to the estate in maintaining the testator's will; they were adopted by the administrator, and the usual rule must prevail. ”

“ It is argued that this restoration of the assets to the hands of the administrator, with the duty of distribution and the requirement of a new bond, relieved him of the terms of the bargain on which it was agreed that he should act, if that bargain ever was valid. We think it enough to say that we perceive no such change of situation from what was anticipated as should have that result. ”

“ But the court is of opinion that the general rule of construction must prevail, according to which, in the case of a gift to the children of several persons described as standing in a certain relation to the testator, the objects of the gift take per capita, and not per stirpes. ”