His Honor ordered the cost to be paid by the plaintiff executor out of the funds of the estate, although the plaintiff was successful in establishing the will which the defendant caveated. In this we think his Honor was right.
The statute provides that the costs in all cases of caveated wills and testaments shall be paid as the court may in its discretion direct. Bat. Rev., ch. 119, sec. 26.
But it is insisted that that statute is virtually abrogated by C. C. P., secs. 276 and 294. Section 276 provides that "costs shall be allowed of course to the plaintiff upon a recovery in the following cases." And then the cases are enumerated. But this is not one of them. Section 294 provides that "the costs in special proceedings shall be as herein *Page 273 allowed in civil actions, unless where otherwise specially provided." It is "otherwise specially provided" that costs in this case shall be at the discretion of the Court.
PER CURIAM. Affirmed.
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