147 Misc. 63 | N.Y. Sur. Ct. | 1933
The proponent, the special guardian, and one of the legatees, each now move to charge personally on the contestants separate bills of costs in the probate proceeding in which the jury upheld the last will and codicil of this testatrix. The union of the inconsistent interests of the two contestants, and on the other hand, the fact that in upholding the will the proponent also protected the legatees thereunder, including the infant, permits a discussion in which the question need not now be divided.
The contestants put in issue the sanity of testatrix, the compliance with the statute on executing the writings; and they also denied that the propounded papers were the last will. None of those matters were allowed to go to the jury. They were but special denials of some features essential in proponent’s case, as was also the like denial that these writings represented the free act and deed of testatrix. On this latter question, the verdict was for the proponent.
If the denial of compliance with the statute be considered by itself alone, there would be no doubt that after having had the
There was also a failure of proof on the point of sanity; after the contestant McBain had succeeded, on appeal (235 App. Div. 378), in getting “ her day in court ” on that subject, notwithstanding this portion of her pleading had originally been stricken out as known by her to be false when made and verified by her. What makes this failure less material now, however, is the fact that the decedent’s mental state, as shown by all the testimony, did go to the jury as an essential factor in the problem of determining whether or not there was a lack of freedom, in the use of such ability as she had, in the act in question. (Matter of Heughes, 144 Misc. 922.) Around this latter point centered the great bulk of the testimony; and so, in the consideration of this motion, it is an important fact that a considerable part of the original issue did go to the jury, although as to other parts of it the contestants utterly failed.
The special guardian now urges that the contestant McBain depended on a prior will for her status herein; and that to save it from revocation she put in the plea the testatrix was totally incompetent for the last six years of her life, including the date of the later will. It will be recalled that this contestant also pleaded that the deceased for all that period was under undue influence; and that the ruling of the court as to her status was favorable in part to this contestant, in respect to the “ common-law ” proof of a lost will as a collateral issue — the rest being involved in the matter of ability and freedom which went to the jury.
The ultimate defeat of the contestants by the jury shows the proponent was put to expense, without adequate cause. Only a comparatively meagre compensation therefor is possible, in any event; and that only as allowed by statute. This court is authorized
It is difficult to perceive the reasons for drawing the subtle lines between the ordinary run of actions for damages where the demand is said to be .liquidated, and those that are unliquidated, and those that are more than usually complex; and thus make costs a matter of right in some classes, and a matter of discretion in the others. It is clear, however, that in the usually multifarious proceeding in rem, and in cases calling for the extraordinary remedies on the equity side of the court, costs are discretionary, within the limits of the statute. Most surrogate “ decrees ” áre in rem, and in the nature of an equitable determination, as the term itself implies (Lawrence v. Lindsay, 70 N. Y. 566); and thus the section of the Surrogate Court Act quoted above is largely declaratory of the rule that traces its origin, with some of the jurisdiction of the court, back to equity sources. The decree of probate is on a “ common-law ” issue that carries with it a right to trial by jury; but the statutes on costs make no exception in that respect in so far as the Surrogate’s Court is concerned — whatever may be the rule on
What, then, are the equitable reasons that govern the use of this power by the surrogate to award the successful party his statutory damages against the other party “ pro fatso clamore suo,” as the old writers put it? One ground has already been mentioned, namely, where the issue arose out of an “ unsupported charge of fraud,” that was “ entirely wanton and gratuitous,” as well as libelous. (Husted v. Van Ness, supra.) So in the like case of Matter of Rogers (127 Misc. 428), there was an utter lack of evidence, and a verdict was directed. In the Jackson Case (127 Misc. 187) the unsuccessful party was found to have been the chief actor in preparing a spurious will; and there it was held, on the authority of the Marshall Case (189 App. Div. 477, 481), “ the estate should not be mulcted in costs and expenses of his unsuccessful effort to perpetuate the fraud.” Another group of cases might be classified as mere “ strikes,” or “ hold-ups.” Thus, in the Sillings Case (2 N. Y. Supp. 637) the objectant was forced to admit his objecting to an account, resulting in a reference, was only “ a bit of strategy in the course of their campaign to assert title in their father to a considerable part of the estate which the executor had in his possession as part of the testator’s estate,” and thus cause delay until the objectant could bring an action against the executor. In the Lowman Case (1 Misc. 43) the contest was wholly without merit, and was probably “ brought for some ulterior purpose.” In the Whelan Case (supra) the objectant was held to have had no real cause for believing the will invalid; but objected merely “ in the hope some fact might develop in his favor.” He offered no testimony. In subjecting the proponent’s witnesses to an exhaustive cross-examination, he was said to have “ indulged in a fishing excursion; ” and had seemed “ to grope about with a wavering hope that something may turn up which shall be of advantage.” The surrogate there condemns willful'^blocking of probate procedure, especially, when done for the purpose of “ forcing some recognition of fancied rights.”
The fact that such a losing party persisted in his course to the extent of forcing upon proponent the expense of trial by jury is a contributing factor in evidencing his bad faith. (See Matter of Rogers, supra.) Whether the mere fact of having put proponent to the additional expense of trial by jury would, alone and by
In Matter of Castle (2 N. Y. Supp. 638, 1888), the contestant not having offered any testimony, Surrogate Ransom declared it was impossible that this party ever “ had a shadow of belief ” that the will was not genuine; and that they never expected to succeed. In charging them personally with costs, the surrogate made the best formulation to be found in the books of the test for the proper exercise of discretion so to do when he said that it depends upon “ evidence of the good faith of the contestant, and a fair prospect of his success that will convince the mind of any intelligent lawyer * * * there was reasonable ground for'the contest, and some independent evidence to support it.”
What, then, can be said for the contestants towards overcoming both the presumption generally attaching to deféat, and also the imputation of bad faith, as defined above? This trial lasted twenty-four full days, during a considerable portion of which the contestants took up the entire time of the court in presenting their own independent evidence, both as to status and as to the main
Serious as expense must be to this estate, I am of opinion the costs of this attack upon it, unsuccessful though it was, cannot be charged upon the contestants personally on any application of the test established by the decisions quoted above.
Each of the motions to that end is accordingly denied; and orders to that effect may be entered.