In re Salmons' Will

30 Del. 446 | Del. Super. Ct. | 1919

Heisel, J.,

delivering the opinion of the Court:

When this case was heard before the register of wills, he admitted the will to probate and taxed the costs of the proceedings against the caveator.

[1] This appeal is taken, as we understand it from the argument of counsel for the caveator, not so much with the expectation of reversing the decree of the register admitting the will to probate, as his order taxing the costs against the caveator.

After a careful consideration of the evidence, we think the register’s finding should be affirmed as to both points.

Three of the four reasons argued before the register against the probate of the will were abandoned when the case came before us, and it was submitted to us upon the single point of the failure of the testator to declare to the attesting witnesses that the paper writing was his last will and testament. This contention is so completely disposed of by Lodge v. Lodge, 2 Houst. 421, that we fail, to see how the caveator could have had any reasonable expectation of succeeding with it.

[2] As to the question of the allowance of costs, section 4449, Code of 1915, provides:

“A court of equity, the register’s court, the Orphans’ Court, and the Superior Court exercising appellate jurisdiction from the two last mentioned courts, shall make such order concerning costs in every case as shall be agreeable to equity.”

In ascertaining what would be agreeable to equity in cases of contested wills in the register’s court, and in this court on .appeals therefrom, we know of no better rule to follow tjian that laid down by this court in the Warrington Will Case, 2 Boyce 595, 81 Atl. 501, and Rodney v. Burton, 4 Boyce 171, 184, 86 Atl. 826, 832. In the latter case, in determining whether a reasonable sum should be allowed the contestant for counsel fees necessarily incurred in making the contest, the court said:

“If there was probable cause, or reasonable ground, for resisting the will, based upon competent evidence, the contestant should be allowed such expenses, and not otherwise.”

While the application in each of those cases included a reasonable sum for counsel fees for contestant’s counsel, to be taxed as costs against the estate, there is no difference in principle between them and this case, in which costs other than counsel fees are in dispute.

It may be the court would not hold to the same degree of strictness, the showing of probable cause or reasonable grounds for resisting the will, when the question is as to regular costs only, and without contesting counsel fees, as it would if counsel fees are asked for also, but the same rule would, nevertheless, apply.

We think it unnecessary to review the evidence in this case, but after a very careful consideration of it, we are of the opinion that the register was well within the rule as above laid down, and, therefore, find his decree should be in all things affirmed.