Mousnier v. Taylor

LORIGAN, J.

This is an appeal from an order allowing respondent’s testate, who was one of the nominated executors under the last will of Therese Berthol, deceased, expenses incurred by such executor in resisting a contest against the probate of her will. Said nominated executor—Joseph Morcel—was made the principal beneficiary under the will and petitioned for its probate, whereupon a contest against the probate was filed by the daughter and only next of kin of deceased on the ground of alleged undue influence exercised by said Morcel upon the deceased to procure the execution of the will in his favor. The verdict of the jury on the trial of the contest was in favor of the contestant on that ground and the judgment was entered denying probate of the will therefor. Thereafter the motion of said Morcel for a new trial being denied, he appealed therefrom and from the judgment.

Subsequently, an administratrix of the estate of said Therese Berthol having been appointed, said Morcel applied to the superior court for an allowance out of her estate of his expenses incurred as nominated executor in the contest of the will on the ground that these expenditures were made in. good 'faith. Pending this application Morcel died and respondent, as executor of his will, thereafter proceeded in the matter. Appellant, while admitting the expenditures in the sum claimed—$849.90—resisted the granting of the order, setting up in opposition thereto the verdict and subsisting judgment denying the probate of the will on the ground of Undue influence of Morcel.

The court granted the application and made the order from which this appeal is taken.

[345]

The authority of the superior court sitting in probate to allow the costs and expenses of Morcel incurred in the contest of the will is based on section 1720 of the Code of Civil Procedure as follows: “When it is not otherwise prescribed in this title, the superior court . . . 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.” While this provision of the code places the matter of allowing costs and expenses within the discretionary power of the court, and permits it to be exercised in favor of an unsuccessful proponent of a will, still this discretionary power should be exercised only in his favor “as justice may require” where he has acted in good faith, and such discretion can be properly exercised only upon the final determination of the litigation. When the order here appealed from was made there was no final determination of th$ controversy respecting which this allowance was claimed. It is only then that the court can properly determine whether it would be justified in making the allowance or not. In that respect the principle is declared in the