In re Folger

4 Johns. Ch. 169 | New York Court of Chancery | 1819

The Chancellor.

In the case ex parte Ward, (6 Ves. 579.) a groundless petition by a stranger, for a traverse, was dismissed with costs. So, where the heir filed a bill to set aside a will- on the ground of the testator’s insanity, and failed, he was ordered by Lord Hardwicke, in Webb v. Claverden, (2 Atk. 423.) to pay costs. It would appear, from the case of White v. Wilson, (13 Ves. 87.) that when die heir demands an issue to try the testator’s sanity, and fails, he will be ordered to pay costs, if he sets up insanity as a pretext. The question of costs is discretionary, and depends upon the character of the application, and the conduct of the party.

In the present case a relation of the lunatic had procured a deed .from him, while a lunatic, and his interest in establishing that deed, and not concern or humanity for the lunatic, was, probably, the motive for the traverse of the inquisition. He was struggling for his own advantage ; and it is just and reasonable that he should pay the costs to which he has, without just ground, and in furtherance of his claim, subjected the estate of the lunatic.

Ordered, that T. F. pay the costs to be levred ⁺ within •twenty days, &<%

+ tased