The following opinion was filed January 28, 1908:
Bashrord, J.
The first question raised upon the motion to dismiss the appeal relates to the nature of the proceeding in which the order appealed from was entered. The contention upon the part of the respondents is that the order does not “determine the action and prevent a judgment from which an appeal might be taken,” under subd. 1, sec. 3069, Stats. (1898) ; neither is it a “final order affecting a substantial right made in special proceedings,” under the second subdivision of that section. It is clear that the order, does not come within the first subdivision of sec. 3069, and if appeal-able it must be upon the ground that the application for the payment of the suit money for the minor contestants out of the fund in litigation is a special proceeding. The application for this allowance did not necessarily relate to the determination of the contest of the probate of the will, but was a separate and independent proceeding to which the special administrator, if he was to be bound thereby, should have been made a party. The order entered upon this application made a final disposition of the proceeding, and it bears the same relation thereto that the final judgment does to an action. It was therefore a final order entered in a special pro-needing within the rule of Kingston v. Kingston, 124 Wis. 263, 102 N. W. 577.
The second ground urged for dismissing the appeal is that A. J. Frame as proponent and executor of the will is not a party aggrieved. The executor might have made himself a party to the proceeding by appearing and moving to vacate tbe order after it was entered. In re Butler’s Will, 110 Wis. 70, 85 N. W. 678. But, not having been made a party, he has no standing here to assign error. Bank of Comm. v. Elliott, 109 Wis. 648. 85 N. W. 417.
*29The situation is different with respect to the proponent of the will upon this record. Some confusion has perhaps arisen in the proceeding from the fact that the same person is the proponent'of the will, the executor, and the special administrator. The order to show cause is directed to the proponent and respondents, the respondents being the proponent and the board of trustees of Carroll College. It requires them to show cause why A. J. Frame, special administrator of the estate of Elizabeth McNaughton and the proponent of her alleged will, should not be ordered to pay to the guardian ad litem $300 with which to procure the attendance of witnesses at the trial. The order finally issued recites that the preliminary order having been brought on for hearing, “requiring said Andrew J. Frame as special, administrator of the estate . . . and the proponent of her said alleged will,” etc-., and directs “that said Andreiu J. Frame, proponent of said will and special administrator of the estate of said Elizabeth McNaughton, deceased, forthwith pay over to D. S. Tullar, guardian ad litem, . . . the sum -of $300 of the moneys in his hands belonging to the estate,” etc. As already stated, Andreiu J. Frame as special administrator was not a party to the proceeding, while And/reiv J. Frame as proponent of the will was a party, and as such is'required to malee payment of this money. He is the only party upon whom the order can properly operate, and was therefore the adverse party on the record. “He was to all intents and purposes the defendant in the proceedings, regardless of the name by which such a party is commonly known.” State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046. As the proponent was required to make payment of the money, he was certainly a party aggrieved by the-order. The motion to dismiss the appeal must therefore be denied.
This appeal presents for the first time the question as to the power of the court under the statutes of this state to direct the payment of anticipated expenses of the trial to the adverse party out of the funds of the estate in a contest of the pro*30bate of a will. If such power exists it may be exercised not only by the court in which the contest arises, but also by any court to which it may be carried by appeal, and be exercised, too, upon a preliminary order and without investigation of the merits of the controversy. If any such power has been granted it should be exercised with great caution to prevent the estates of deceased persons from being squandered in fruitless litigation. Eor the court to allow or apportion costs in such case it is necessary to point 1» the specific provision of the statute giving authority. In re Donges’s Estate, 103 Wis. 497, 513, 79 N. W. 786. We have been referred to no statute expressly conferring such power and we have been unable to find authority to justify the entry of this order. Sec. 4041, Stats. (1898), authorizes the county court to award costs in contested matters, to be paid out of the estate which is the subject of controversy as justice and equity may require, but such award can only be made by judgment. Sec. 404-la provides that, when a judgment is made upon a contested application for probate of a will, costs payable out of the estate should not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an infant or is named as an executor in a paper propounded by him in good faith as the last will of the deceased. This clearly contemplates that the allowance shall only be made at the time the judgment is directed or entered. This statute has received strict construction by the court, and in Stephenson v. Norris, 128 Wis. 242, 107 N. W. 343, it was held that an allowance for the services of the guardian ad litem should be made payable only out of the infant’s property under the control of the court, and not out of the body of the estate subject to litigation. Eor the purpose, doubtless, of modifying the rule which had been stated in former decisions, and which was re-affirmed in the case last cited, sec. 4041a was amended by ch. 267, p. 596, Laws of 1907. Subd. 2 of sec. 4041a thus enacted provides that a guardian ad litem, for *31an infant who is a necessary party to a proceeding to probate or to construe a will or to settle an estate may be allowed compensation for bis services and for bis necessary expenditures in tbe litigation, to be fixed by tbe court in wbicb tbe litigation is bad, to be paid out of tbe body of tbe estate in controversy if tbe infant bas no available property out of wbicb sucb payment can be directed. Sucb allowance is to be made in tbe discretion of tbe court, as provided in tbe first subdivision of tbat section, and by judgment, as provided in sec. 4041. Tbis amendment cannot be construed as authorizing an allowance before tbe services bave been rendered or tbe expenditures have been made, as tbe court must determine tbe value of sucb services and the necessity for sucb expenditures. Tbe order was therefore improperly granted.
By the Court. — A motion to dismiss tbe appeal is denied, and tbe order appealed from is reversed.
A motion by tbe respondents to modify tbe mandate was ■denied March 10, 1908.