| N.J. Super. Ct. App. Div. | Feb 15, 1896
The will appears to have been executed with due formalities and to be a valid instrument, under the laws of both New Jersey and North Carolina, and hence it is difficult to perceive what advantage would have accrued to the respondent if probate in this state had been defeated on the ground urged by her. It is certain that no advantage, which can justify so expensive a litigation as this has been, has been pointed out to me.
It is prescribed by statute (Rev. p. 791 § 177) that in causes respecting the probate of wills, if probate be granted, the court shall order the contesting party to pay the costs and. expense of the litigation, unless it shall appear to it that such party had reasonable cause for contesting the validity of the will, or shall not have offered other testimony than that of the subscribing witnesses, and that if such reasonable cause shall appear, the
The statute is but an emphatic declaration of the previously-, existing law upon the subject of such costs and expense, save in the particular that it renders it obligatory upon the court, in case of the grant of probate, to order the contestant to pay the costs and expense of the litigation, unless he shall show reasonable ground for disputing the validity of the will or shall have confined his contest to the testimony of the subscribing witnesses. Perrine v. Applegate, 1 McCart. 531. It is observed that the saving clause relating to reasonable cause, is limited to contests where the validity of the will-is drawn in question. It does not apply where the issue made is as to the court’s jurisdiction, which does not deny the validity of the instrument. Such literal construction appears to me to be not only the interpretation of the statute which will harmonize and retain all its language, but also that which accords with the legislative purpose, which was to rebuke a theretofore habitually unjust exercise of judicial discretion, by the several orphans courts. Perrine v. Applegate, supra.
Under this construction, the costs and expense of the contest upon the question of domicile must be charged -to the contestant and not upon the testator’s estate.
But it is not necessary, to the decision of the present matter, that I shall rest alone upon the construction of the saving clause stated. Taking that clause to permit the costs and expense of any contest against probate founded upon reasonable cause to be thrown upon the testator’s estate, I reach the same conclusion. The practical advantage of this contest, looking at it in the light of every possible event, is not apparent. The will was unquestionably valid both in New Jersey and North Carolina. It specified what the contestant should take and disposed ultimately of all other property of the testator.' It is not perceived how the place of probate would affect the contestant’s interest a particle. If, after probate, the contestant should dissent to the provisions of the will in her behalf, the question of the domicile of her husband might become import
But more than this, although, when the will was offered for probate, the question whether it might be admitted to probate in this state in the first instance, the domicile being elsewhere, had not been directly settled by adjudication in Yew Jersey, that question was so well determined by the current of adjudication elsewhere, that it could hardly be considered open even in this state, and it certainly was not a question which would justify a contest from which no substantial benefit could accrue to the contestant.
I find, then, that there was no reasonable, cause for the contest.
The orphans court should have ordered the contestant to pay the costs and expense of the litigation — that is,' of the contested issue in the-case. But the costs and expense so charged should not extend to the petition for probate, nor to the expense of taking the testimony of the subscribing witnesses nor to expense or costs by reason of other matters, if any, not involved in the trial of the contested issue.
Yo counsel fees on either side .should be allowed.
The proponent should not be given a counsel fee from the estate because of the litigation, although he be executor of the will, because, at the outstart, by taking the initiative in the production of evidence concerning domicile, he was instrumental in inviting and encouraging contest on that ground, for which reason it would be unjust, he, as well as the contestant, being a beneficiary of the will, to give him the advantage of having his counsel fees páid out of the estate, which is partly of the contestant’s property, while the contestant, who has been but little more guilty than he, is charged with the whole costs and expense of the litigation, besides her own counsel fees.
Costs not chargeable to the respondent as stated should be paid out of the estate.
The order appealed from will be reversed, with costs.