34 A.2d 291 | N.J. | 1943
John G. Peppler and Henry W. Peppler appeal from a decree advised on December 8th, 1942, by Vice-Ordinary Egan, whose opinion is reported in
On the question of counsel fees, the Vice-Ordinary did not state his reasons. We deem it advisable to state our view. The court below held that John and Henry Peppler, who were decedent's sons and the executors named in the instrument which was denied probate, had grossly abused the trust *161 and confidence which testatrix placed in them. We concur in this finding.
An executor offering a will for probate, acting in good faithand without proof of fraud, is entitled to costs out of the estate, whether probate be granted or refused. 1 Kocher's NewJersey Probate Law 233. To the same effect: 2 Redfield on theLaw of Wills 112; 28 R.C.L. 407 § 419. Cf. Boylan v. Meeker,
Cross-appellant, Emiline Roffe, appeals from the same decree, asserting error in the denial by the Prerogative Court of her right to have the cost of this protracted litigation assessed against the proponents personally. The decree, as brought up by the printed record, contains no such denial. There is nothing in this regard upon which the court may act.
The decree of the Prerogative Court dated December 8th, 1942, is affirmed and the cross-appeal of the caveatrix is dismissed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 13.
For reversal — HEHER, J. 1.
For dismissal of cross-appeal — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 14. *162