32 Neb. 191 | Neb. | 1891
It appears from the record that on August 17,1888, the last will and testament of Eliza Jane Mathis, late of said county, deceased, was duly admitted to probate and record
The proponent set up, in the district court, that the testatrix, late of Liberty precinct in said county, departed this life July 15, 1888, and that prior to her death, on June 18, 1888, being of sound and disposing mind and memory, made and executed, according to law, her last will and testament, setting it forth, in hceo verba, probated and admitted to record August 17, 1888.
The contestant answered, alleging that on or about the 18th day of June, 1888, the testatrix was not of sound mind and memory, but by reason of extreme old age and long
The proponent replied in a general denial.
There was a trial to the court, upon the testimony of the subscribing witnesses to the will, upon that of ten witnesses for the contestants, of ten in rebuttal, and of four in surrebuttal, all being examined on the trial as to the issue of the validity of the will. The court below found the issue in favor of the proponent, and affirmed the order of the county court admitting the will to probate and record, and adjudged the costs in the lower court and the district court, of $94.03, against the proponent as executor of the testatrix. To this order the proponent excepted, and his motion, in-the court below, to retax the costs being overruled, the motion is brought here on his petition in error.
1. The court erred in rendering judgment for costs against the estate of the testatrix.
2. In reversing the order of the county court in taxing the costs to the estate and to contestants in equal parts.
3. In overruling the motion to retax the costs.
Under the first assignment is to be considered the provision of the statute as to the appeal having been “taken vexatiously, or for delay.” Erom the record evidence there appears to have been sufficient and substantial reasons for doubt, and for inquiry into the validity of the will. There is testimony as to the age, physical and mental infirmities, and the testamentary capacity of the testatrix, in her last sickness, sufficiently justifying the inquiry, and excluding the contest from any class of vexatious or dila
In so far as an executor performs a duty devolved in a' litigation to establish a will, the expenses incurred in a contest with the heirs at law are payable out of the estate, whatever be the consequences to the successful contestants. (Andrews v. Adm’rs, 7 O. St., 143; Meeker v. Meeker, 37 N. W. Rep. [Ia.], 773.) And the principle upon which the costs of litigation to establish a will, being chargeable against those who are benefited by the litigation, may be charged against the estate, if the contestants are legatees. (Woerner’s Law of Administration, 2, 1150.)
It is presumed that the court below exercised a sound discretion in its award of the costs of contestant against the estate of the testatrix, and that discretion, like the finding of a jury, will not be disturbed unless evident error appears. An inspection of the record, and the testimony of a number of witnesses called by the contestant, confirms the opinion that the discretion of the court was wisely exercised, and its judgment will be
Affirmed.