245 P. 1089 | Cal. | 1926
The order appealed from vacates that portion of a judgment, in a will contest, which awarded costs in favor of the plaintiff, Aurilla Mabel Waller, and against *470 defendant Emily W. Ewald. The contest arose over a document which purports to be the last will and testament of Aurilla Johnson, deceased, and names said Emily W. Ewald as sole legatee and devisee. This instrument was offered for probate by Amos O. Williams, as public administrator of Santa Clara County, who asked for letters of administration with the will annexed. Probate was contested by Aurilla Mabel Waller, an adopted daughter of the decedent, upon the grounds that decedent was not of sound mind at the date of the execution of the instrument and that the instrument was not entirely written, dated and signed by the decedent; in this action Amos O. Williams and Emily W. Ewald appeared as defendants. The jury returned a verdict in favor of contestant upon both grounds, judgment was entered in accordance therewith and defendants' motion for a new trial was denied. In passing, it may be noted that the merits of the will contest are involved in an appeal which defendants have taken from the judgment itself and are not under consideration in the present proceedings.
Subsequent to the motion for a new trial, defendant Amos O. Williams moved that the judgment be set aside and vacated upon the ground that it contained an award of costs which was made and based upon an erroneous conclusion of law and which was not within the authority or jurisdiction of the trial court. The motion was granted and an order made vacating the judgment and directing the entry of a judgment in favor of plaintiff as previously rendered, but eliminating therefrom all provisions concerning costs. From the order last mentioned plaintiff Aurilla Mabel Waller instituted the present appeal.
In support of her appeal plaintiff contends that the trial court had jurisdiction to award costs against defendant Emily W. Ewald, since section
The right to recover costs exists solely by virtue of statute. Consequently an award of costs can be justified only if permitted by some statutory provision, and the measure of the statute is the measure of the right. (Begbie v. Begbie,
In Estate of Yoell,
By reason of these authorities we are compelled to conclude that the statute applicable to costs in will contests before probate does not authorize an allowance of costs until the final determination of the litigation, and, consequently, that the trial court was without jurisdiction to allow costs in rendering the judgment in plaintiff's favor in the present case.
However, it is pointed out by plaintiff that the motion to set aside the order allowing costs was not made by Emily W. Ewald, the defendant against whom costs were awarded, but by defendant Amos O. Williams, who was not the "party aggrieved." Plaintiff claims that according to the provisions of section
The order eliminating that portion of the judgment which allowed costs was therefore proper and the present appeal must fail. The order is affirmed.
Seawell, J., Richards, J., Shenk, J., Curtis, J., Waste, C.J., and Cashin, J., pro tem., concurred.
Rehearing denied.
Curtis, J., dissented. *473