#### AMZI J. ELLINGTON, Trustee, v. D. D. ELLINGTON et al.

(Filed 29 March, 1933.)

Appeal by applicants for allowance from Sinclair, J., at November Term, 1932, of "Wake.

Petition for partition, with prayer on the part of two of the respondents that executor and trustee be required to file true and correct account of his stewardship, as upon application to surcharge and falsify. The matter was referred, as it involved an accounting, and resulted in benefit to the estate; whereupon application was made for allowance out of the estate of counsel fees to attorneys for the two respondents who demanded that the executor and trustee be called to book. Application denied on the ground that the court “is without power to make such allowance.” Appeal by applicants.

Pou & Pou and R. L. McMillan for appellants.

Manning & Manning, A. B. Breece and Jones & Brassfield for appellees.

Per Curiam.

Affirmed on authority of Mordecai v. Devereux, 74 N. C., 673, and In re Will of Howell, ante, 437.

Affirmed.