In re Estate of Mullins

By the Court, Niles, J.: By the provisions of section 1,720 of the Code of Civil Procedure, the Probate 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 see no abuse of the discretion here conferred, in the allowance of the respondent’s claim for the amount paid to the shorthand reporter. In the proceedings in which these costs accrued the executor was charged not only with mismanagement of the estate, but with embezzlement and fraud of the gravest character. No one of these charges was sustained except that of mismanagement of the estate, and upon this ground only he was. removed from office, and his letters were revoked. No implication of bad faith on the part of the executor arises from the mere fact of mismanagement of the estate. This might occur'solely from his incapacity to perform the duties of the office, and is not at all inconsist■ent with his fidelity to his trust. In such case, the costs incurred in the proceedings for his removal might very well be considered by the Court as being a proper charge upon the trust fund. It is evident that the Judge before whom the trial was had so considered it, and his successor, if not absolutely bound by the orders made, was very properly influenced by them. ■ •

2. There was no error in the allowance of the amount paid by the executor for jury fees in the contest concerning the final account. Even conceding that the Court was not [453]concluded by its own order, made upon the coming in of the verdict, that the former executor pay the fees out of the funds in his hands "belonging to the estate, the allowance was proper in itself. The attack was made upon various items of the account, amounting in the aggregate to more than seven thousand dollars. By the verdict this amount was reduced in the sum of about seven hundred dollars. The verdict was substantially favorable to the executor, and entirely so upon all issues involving any question of bad faith upon his part. It would have been unjust to disallow the item under these circumstances.

Decree affirmed.