In re the Appeal from the Register of Wills upon a Review of the Papers Writing Purporting to be the Last Will & Testament of Warrington
delivering the opinion of the court:
At the adjourned April term of the Superior Court for this county, argument was heard upon the appeal from the decree of the Register of Wills in the matter of the review of the probate of the papers writing purporting to be the will and codicils of Alfred C. Warrington, Sr.
The court finds, and therefore decides, that under the facts and the law of this case, the rulings and decree of the Register of Wills, as shown by the exceptions filed, are without error; that the papers writing рurporting respectively to be the last will and testament of Alfred C. Warrington, Sr., and his сodicils thereto, are together the last will and testament of Alfred C. Warrington, Sr.; аnd that the exceptions filed by the appellants to the rulings and finding of the Register of Wills should not be sustained.
Commenting only upon that exception which relates to the disallоwance by the Register of counsel fees for this petitioner’s counsel, the court has to say that it knows no rule whereby comise fees for petitioner’s counsel in contested will cases are of right or of course taxablе as a part of the costs to be paid by the estate. Indeed, the inclinаtion of the court is to the contrary, as it feels that the allowance оf counsel fees as costs constitutes an exception rather than a rule. Obviously in certain cases counsel fees for both parties should be charged against and paid by the estate, but we do not think this case comes within this exceptional class. It is apparent to the court, however, that in the preparation and presentation of this case, counsel for thе petitioners have been subjected to expenses, which although certain, are difficult to designate and enumerate. To meet and defray their expenses, the court in the taxation of the costs, will allow counsel for the petitioners the sum of $250, which, like the rest of the costs, is to be paid by the estate.
Whereupon the court made and signed a decree in the following fоrm:
And Now to Wit, this, sixth day of July, A. D. nineteen hundred and eleven, the appeal having beеn argued by counsel, Henry Ridgely and John B. Hutton, Esquires, attorneys for appellants аnd Herbert H. Ward and Thomas C. Frame, Jr.,
It is Ordered, Adjudged and Decreed that the sentenсe and decree of the said Register, “That the paper writing pronounсed by Alfred C. Warrington, Jr., named as executor thereof, upon which letters testаmentary have been granted, as the last will and testament of Alfred C. Warrington, Sr., latе of East Dover Hundred, Kent County, and State of Delaware, deceased, dаted the first day of February, A. D. one thousand nine hundred and six (1906), the first codicil dated the twеntieth day of February, A. D. one thousand nine hundred and six (1906) the second and last codiсil dated the twenty-eighth day of August, A. D. one thousand nine hundred and eight (1908), is the last will and testament of the said Alfred C. Warrington, Sr., deceased, and the probate heretofоre made is hereby ratified and confirmed, and that the costs of these prоceedings be paid by said executor out of the estate with the excеption of the petitioners’ counsel fees,” be and is hereby in all things affirmed.
And It Is Further Ordered, Adjudged and Decreed by this court that the costs of the proceеdings, both on review before the said Register and on appeal to this court, which are hereby taxed at the sum of six hundred and sixty-one dollars and eight cents ($661.08) bе paid out of the estate of the said Alfred C. Warrington, Sr., deceased.
And It Is Further Ordered that the decree of this court be certified to the said Register of Wills in and for Kent County and that the record in this case be remanded to the said Register.