Majority
p. 287(60 Misc. Rep. 297.) In re DAVIS’ WILL. (Surrogate’s Court, Kings County. July, 1908.)
Headnote
Wills (§ 404[1] )—Contest—Right to Costs.Where the committee of a lunatic unsuccessfully contested the probate of a will, it is not a special guardian appointed by the court, authorizing an award of costs, under Code Civ. Proc. § 2558.
[Ed. Note.—For other cases, see Wills, Dec. Dig. § 404.*]
In the matter of the probate of the will of Erederick A. Davis.
Award of costs to unsuccessful contestant denied.
Campbell & Pape, for proponent.
Harris, Corwin, Gunnison & Meyers, for Hannah Davis and Home Trust Company, as committee, contestant.
David Murray, for Asher Murray, general guardian of-Anna M. Merwin and George Merwin, infants, contestant.
Where the committee of a lunatic is an unsuccessful contestant upon probate, and there has been no special guardian appointed for the lunatic, costs cannot be awarded to the committee. In this case the claim of costs is deserving, and would be approved, if it were within the power of the court to allow it. Section 2558 of the Code, so far as applicable, provides that costs shall not be awarded to an unsuccessful contestant, “unless he is a special guardian appointed by the court.” It will not do to give costs to the committee on the theory that he is to be regarded as a special guardian. It is to a person “appointed,” and not to one “regarded,” that the award is possible.
Decreed accordingly.