| New York Court of Chancery | Dec 9, 1816
There is no clear and certain evidence of any_such mistake ails charged in the bill. The weight of evidence is decidedly the other way. The bill must, accordingly, be dismissed. It cannot be retained on the ground that the instalments paid by the defendant to Van Schelluyne, were not paid at the times stipulated, and, therefore, intervening interest is due. The bill was brought to correct an alleged mistake, and nothing else, and if any such interest is due, (and the better opinion is that there is none,) the party’s remedy was clear and perfect at law. The only difficulty in the case is, whether the bill shall be dismissed with or without costs.
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Ordinarily, executors and other trustees do not pay costs, unless guilty of misbehavior, or some wilful default. They are not supposed to know, as plaintiffs, the imbecility of their own suit. This is the reason of the rule at law. (3 Bos. & Pull. 117, 118.) But in this Court, where costs are discretionary, the rule seems to depend more on the particular circumstances of each case. Where the heir brings, in that capacity, a groundless or vexatious suit, the Court will make him pay costs, though he may be; as heir, tenderly regarded by the Court. (3 P. Wms. 373. 2 Atk. 424. 3 Bro. 214.) In this case, the suit is substantially for the benefit of two of the executors, for they have covenanted to indemnify the defendant against any payments to Van Schelluyne, beyond the sums mentioned in the agreement; and in proportion as that agreement can be extended, the *extent of their covenant will be diminished. Nor can they be said to have brought the suit ignorant of the testator’s rights. They knew of this controversy before his death; one of them was a witness to the instrument in dispute, and two of them had, in behalf of the testator, afterwards ratified and confirmed it, as it stood, and with an express view of closing the question.
Decree accordingly.