Mich. 180. We find ourselves unable to agree with this construction of the language of sections eight and nine of the will. There is no doubt that we have frequently held that a cardinal rule of construction is to ascertain, if possible, the intention of the testator from the four corners of the instrument and after such intention is so ascertained, to give it effect if that be legally possible. Applying that rule to the construction of the two sections of the will in question we are constrained to the view that it was the intention of Elmer Stafford to give to his son, Howard, an absolute estate in fee in the property devised. The expression in the eighth paragraph:

"which sum is all that I wish said Martha Stafford and any of her blood relations ever to have of my property,"

-and that in the ninth:

"but I want my son Howard to make such disposition of the property I hereby will to him that it shall be kept in the line of the Stafford blood and if any be poor or crippled I would like my said son Howard to favor those first out of said property."

-are both clearly of a precatory character. The testator conveyed to his son an absolute estate in fee with full power of disposition but desired his son to know what his wishes were with reference to the ultimate destination of the property so devised. No language is found in either of the sections in question placing any legal limitation upon the estate thereby conveyed to the son, nor can it be said (regard being had for the language used), that the testator desired to impose any such limitation. That the son failed to heed the admonition of his father and to give effect to his father's clearly expressed desire is unquestioned, but that is a contingency against which the testator could have, but did not, provide. It affords no argument for a strained or unusual construction of the

language used. This construction of the will under consideration falls well within the following decisions: Jones v. Jones, 25 Mich. 401; Dills v. La Tour, 136 Mich. 243; Moran v. Moran, 143 Mich. 322; Killefer v. Bassett, 146 Mich. 1; Turnbull v. Johnson, 153 Mich. 228. It is elementary that a probate court may construe wills for certain purposes and that it must do so for the purpose of distribution. Parkinson v. Parkinson, 139 Mich. 530.

We are of opinion that the order of distribution made by the probate court of Hillsdale county, bearing date July 24, 1895, by the terms of which the residue of the estate of Elmer Stafford was assigned to Howard Stafford and which required a construction of the will of Elmer Stafford, was proper and that the construction of the disputed sections of the will which was the basis of the order, is the only construction possible. Our determination upon this point renders consideration of the second question unnecessary, for, if the construction of the will by the probate court was correct, the allegation in the bill of complaint that such construction was brought about through fraudulent representations made by Howard Stafford is wholly unimportant. It is further unnecessary in this case to determine the claim made on behalf of the defendants that the orders of the probate court are as to plaintiffs res adjudicata, though upon this point see Calhoun v. Cracknell, 202 Mich. 430.

The decree dismissing the bill is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, FELLOWS, STONE, and KUHN, JJ., concurred.

JOY v. INGHAM CIRCUIT JUDGE.

COSTS-EXPERT WITNESSES-STATUTORY FEES.

Section 12557, 3 Comp. Laws 1915, limiting the right to hire and pay expert witnesses in excess of the statutory fee, and providing that an award in such cases shall be made by the court, is no authority for the court to tax such excess fee so allowed against the defeated party.

Mandamus by William H. Joy and another to compel Charles B. Collingwood, circuit judge of Ingham county, to set aside an order taxing costs. Submitted October 8, 1918. (Calendar No. 28,376.) Writ granted December 27, 1918.

Cummins & Nichols, for plaintiffs.

L. B. Gardner and O. J. Hood, for defendant.

In the

BROOKE, J. Mandamus. Petitioners, who were defendants in an equity proceeding, were finally defeated in this court where an opinion was filed requiring petitioners, as such defendants, to pay the costs of both courts. Saier v. Joy, 198 Mich. 295. original case the plaintiffs had called and examined as experts, six physicians. After the opinion in this court went down plaintiffs applied to the circuit court for an order allowing expert witnesses' fees to said six physicians under 3 Comp. Laws 1915, § 12557, which reads as follows:

"No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award,

shall be guilty of a contempt of court, and on conviction thereof be punished accordingly."

To this application defendants (petitioners herein), interposed objections as follows:

First. That under 3 Comp. Laws 1915, § 12558, the number of expert witnesses should be limited to three.

Second. That the statute did not in terms direct or authorize the court to allow or tax the sums so awarded as a part of plaintiffs' costs in the case against the opposite party.

Whereupon the court made an order limiting the number of expert witnesses to three and fixing compensation at $25 each. Thereafter plaintiffs in the equity case filed their bill of costs including therein as taxable costs the $75 paid for expert witnesses. This item was not allowed by the taxing officer in the circuit court. Upon appeal to the circuit judge it was allowed. Petitioners herein pray for a mandamus requiring the circuit judge to disallow said item.

It is pointed out by counsel for respondent circuit judge that although no statute fixes the amount of solicitors' fees awarded by the court of chancery, the Supreme Court, by Circuit Court Rule No. 64, allows such fees to the prevailing party and that under 3 Comp. Laws 1915, § 12019, subd. 5, this court has authority by rule to regulate costs. It is urged that the statute above quoted has obviated the necessity for such rule. Cases are cited from some jurisdictions (Snyder v. Iowa City, 40 Iowa, 646; Chadwick v. Insurance Co., 158 N. C. 380 [74 S. E. 115]; Farmer v. Stillwater Water Co., 86 Minn. 59 [90 N. W. 10]), which it is claimed support the contention advanced by defendant's counsel. These decisions were announced under statutes materially different from our own and when examined carefully in the light of those statutes we are of opinion they cannot be considered as authority for defendant's position. Be

fore the passage of Act No. 175, Pub. Acts 1905 (now 3 Comp. Laws 1915, § 12557), there was no legal limitation upon the right to hire and pay expert witnesses. The purpose of the legislation was, we think, to limit a right already existing and correct a practice which in the legislative mind appeared to be a growing abuse. No new rights are conferred by the statute. Before its passage a litigant might hire as many experts as he pleased and pay them any sum agreeable to himself and his witnesses. Since its passage only such sums may be paid for expert testimony as the court shall direct. The statute is absolutely silent upon the question of taxing such fees against the opposite party. The authority to tax costs is wholly statutory. Auditor General v. Baker, 84 Mich. 113, and Hester v. Com'rs of Parks and Boulevards, 84 Mich. 450.

We conclude that the circuit judge lacked statutory warrant to tax the fees in question in favor of the prevailing party in the chancery cause and therefore that the mandamus must issue as prayed, with costs in favor of the plaintiffs and against the principal party in interest.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, FELLOWS, STONE, and KUHN, JJ., concurred.