In Re Estate of Bump

SHAW, J.

The will of Nelson Bump, deceased, was offered for probate by Jesse H. Thomas, the executor, and Sarah Angelene Dean, the executrix, named in the will. Sarah L. Bump, the widow of deceased, filed a contest thereto. After a trial, the contest was denied and the will admitted to probate. The bill of exceptions states that in the order admitting the will to probate “said court did order that the costs of said contest be taxed against said estate.” The record contains no copy of the order and no further statement of its provisions in regard to costs. Thereafter, in due time, the proponents of the will filed a cost bill in the sum of $1701.70 and the contestant filed a cost bill claiming the sum of $168.20 as her costs in prosecuting the unsuccessful contest. The proponents and beneficiaries under the will appeal from “so much of the order and that portion of the order ... as charges said estate with the costs of said contestant or which allows or permits said contestant to recover her costs of said contest as against said estate or prohibits or prevents said proponents from recovering their costs as against said contestant.” The quotation is from the notice of appeal.

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It has been held that when there is a successful contest after probate, the court, in its discretion, may allow to the executors out of the estate, their reasonable costs and expenditures in endeavoring to uphold the will of which they had been appointed the executors.

(Estate of

McKinney, 112 Cal. 447, [44 Pac. 743].) Also that where there is a successful contest before probate and the legatees or executors acted in good faith and upon probable grounds in proposing the will for probate, the court may, in its discretion, allow to the unsuccessful proponents their ordinary costs incurred in endeavoring to establish the will, and make the same a charge' against the assets of the estate.

(Estate of Olmstead,

120 Cal. 452, [52 Pac. 804].) Section 1720 of the Code of Civil Procedure provides that in probate proceedings in general 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.” We can conceive of cases in which the duty of a widow, or other person entitled to administration of an estate in case of intestacy, to contest the probate of an alleged will, might be as plain and urgent under the circumstances known to such person, as would be the duty of an executor already appointed, or one nominated as executor, in a will offered for probate, or a legatee thereunder, to oppose a contest and endeavor to establish such will. The provision of the code above quoted is very general in its terms and applies as well to a party contesting a will as to one proposing it. It puts the entire matter of costs within the sound discretion of the court, and we think it must be held that such discretionary power extends to and includes the case of an unsuccessful contestant. It is proper to say, however, that such cases must be rare and the circumstances must be peculiar indeed to justify such an order in favor of a contestant who has failed, and that, as this court under its rules is sometimes compelled to sustain a discretionary order where it has grave doubts of its propriety, the trial court should use great caution and make such orders only in very extreme cases presenting great hardship and where it appears that the contestant has acted in the utmost good faith throughout the proceeding.