Estate of Johnson

SHENK, J.

On a contest before probate of the alleged will of the decedent the jury found for the contestant and judgment was entered accordingly, including costs to the contestant. On motion of the proponent the trial court entered an order vacating the judgment for costs. The con

[308]

testant appealed from said order and the order was affirmed

(Estate of Johnson,

198 Cal. 469 [245 Pac. 1089]). On the going down of the

remittitur

the clerk of this court inserted therein the words “Respondents to recover costs on appeal,” in accordance with the rule governing ordinary civil actions. In due time the contestant filed a notice of motion in this court to recall the

remittitur

and to strike therefrom the provision for costs on appeal on the ground that the allowance of costs in a contest before probate must abide the final determination of the proceeding (sec. 1720, Code Civ. Proc.;

Estate of Johnson, supra).

The proceeding is finally determined by the affirmance of the judgment on the main appeal this day decided

{Estate of Johnson, ante,

p. 299 [252 Pae. 1049]), wherein this court has in the exercise of its discretion under said section 1720 directed that costs on the main appeal be paid out of the assets of the estate. On the former appeal the court did not exercise its discretion in awarding costs pursuant to said section 1720, and the provision for costs on said appeal was improperly incorporated in the

remittitur.

This motion is the proper remedy on behalf of the contestant to exclude from the

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the unauthorized provision

{San Joaquin ete. Irr. Co.