| New York Court of Chancery | Jul 4, 1829
The Chancellor. :—The statute under which the pro* ceedings in this case were instituted, limits the expense to be charged on the estate at twenty-five-dollars in case of a traverse. It necessarily follows that in no case of an unsuccessful traverse can the solicitor of the traverser have any allowance out of the estate. The committee’s expenses must be first paid, and they will absorb the whole amount allowed by law. But in this case there can be no reason for paying the costs of Scoles out of the estate in the hands of the committee, even if there was no restriction in the statute. Van Cott had conveyed all his real estate to Scoles and Johnson, and this traverse was substantially for their benefit. The allowance of costs is discretionary, and depends upon the character of the application and the conduct of the party. In Folger’s case, (4 John. Ch. Rep. 169,) the grantee of a lunatic for whose benefit the issue was awarded, was directed to pay the costs to which the committee had been subjected thereby.
The application must'be refused, with costs to be paid by Scoles to the solicitor of the committee.