92 P. 642 | Cal. | 1907
The will of Nelson Bump, deceased, was offered for probate by Jesse H. Thomas, the executor, and Sarah Angelene Dean, the executrix, named in the will. Sarah L. Bump, the widow of deceased, filed a contest thereto. After a trial, the contest was denied and the will admitted to probate. The bill of exceptions states that in the order admitting the will to probate "said court did order that the costs of said contest be taxed against said estate." The record contains no copy of the order and no further statement of its provisions in regard to costs. Thereafter, in due time, the proponents of the will filed a cost bill in the sum of $1701.70 and the contestant filed a cost bill claiming the sum of $168.20 as her costs in prosecuting the unsuccessful contest. The proponents and beneficiaries under the will appeal from "so much of the order and that portion of the order . . . as charges said estate with the costs of said contestant or which allows or permits said contestant to recover her costs of said contest as against said estate or prohibits or prevents said proponents from recovering their costs as against said contestant." The quotation is from the notice of appeal. *273
It has been held that when there is a successful contest after probate, the court, in its discretion, may allow to the executors out of the estate, their reasonable costs and expenditures in endeavoring to uphold the will of which they had been appointed the executors. (Estate of McKinney,
There is here no attempt to set forth the circumstances and have this court decide whether or not the discretion was abused. The case is presented upon the proposition that the *274 power does not exist in any case, or under any circumstances, to make the costs of an unsuccessful contest payable out of the assets of the estate. The presumptions are all in favor of the action of the court below. The power exists and in the absence of any showing to the contrary we must presume that it was properly exercised.
The same reasons extend to the proposition that the court erred in refusing to give the proponents judgment against the contestant for their costs. As a mere matter of discretionary power the court could do this, and as no attempt is made to show an abuse of discretion, the order must stand. If the estate had been insolvent, perhaps it would have been an error to refuse such judgment for costs; but it is not claimed that the assets are not ample, or that the estate is not solvent.
It is not claimed that the cost bill of the contestant is erroneous or excessive. Nothing in this opinion is to be understood as an intimation that the filing of the cost bill by the proponents, and the failure of either party to object thereto, will constitute an adjudication that the costs they claim are all properly chargeable under the order.
The part of the order appealed from is affirmed.
Angellotti, J., and Sloss, J., concurred.