Estate of Erickson

CONREY, P. J.

This was a contest after probate of the will of decedent. On appeal from a judgment setting aside and revoking the probate of the will, the judgment was reversed by this court, which in its decision made no order concerning costs. Following the general rule concerning costs on appeal (Rule XXIII of the Rules of this court), the clerk inserted in the

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a direction that appellant recover costs on appeal. Respondents now move for an order recalling the

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and for issuance of a corrected

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omitting the words “appellant to recover costs on appeal”.

It has been held that by reason of the fact that the subject of costs in probate proceedings is specially provided for, the general rules concerning costs as set forth in section 1021 et seq. of the Code of Civil Procedure do not apply to probate proceedings

(Estate of Olmstead,

120 Cal. 447, 452 [52 Pac. 804]). For like reasons the general Rule XXIII should not apply in this case. The decision in

Estate of Johnson,

200 Cal. 307 [252 Pac. 1052], deals with the same subject, except that there the contest was before probate, whereas the present contest was after probate. The court in dealing with the motion to recall the

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held that, as the court in its decision had not exercised its discretion in awarding costs, the provision awarding costs on said appeal was improperly incorporated in the

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The ..Probate Code, section 1232, in the article on rules of procedure says: “When not otherwise prescribed by this code, either the superior court or the court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require.” And section 383, in the article on contests after probate, says: “If the probate is not revoked, the costs of trial must be paid by the contestant. If the probate is revoked, the costs must be paid by the party who resisted the revocation or out of the property of the decedent, as the court directs.” We are of the opinion that the