In re Seagrist's Will — 75 N.Y. St. Rep. 339

Majority

p. 339

Matter of Seagrist’s Will.

(Supreme Court, Appellate Division, First Department,

July 31, 1896.)

Headnote

Costs—Judgment of appellate court.

An award of costs against the contestants of a will personally on appeal does not charge them personally with the costs of the contest in the surrogate’s court.

' Appeal from surrogate’s court, New York county.

Proceeding for the probate of the will of Nicholas Sea-grist, deceased. From an order denying a motion to charge costs of probate personally on Francis S. K. Seagrist and Theresa Seagrist, they appeal.

For a report of decision admitting the will to probate see 82 N. Y. Supp. 1095 .

George W. Taylor, Jr., for appellants.

Joseph H. Hayes, for respondents.

Upon making the original decree, which was appealed from, the surrogate exercised his discretion as to the award of costs in the manner which at that time seemed to him just. The order of the appellate division made upon the appeal was not intended to affect the award of costs made by the surrogate, but applied only to the costs of the appeal. It did not follow, because the appellate division awarded costs against the contestants personally upon the appeal, that they should personally be charged with the costs of the original contest in the surrogate’s court. The direction of the appellate division with regard to costs of the appeal had no effect, therefore, upon the decree of the surrogate awarding costs, which stood as effectual unless it was reversed or modified upon the appeal. The fact that the appellate division had awarded costs of the appeal against the-contestants personally afforded no reason why the surrogate should change his original award. No other reason was suggested, and therefore the order appealed from was proper, and should be affirmed, with $10 costs and disbursements.