unsuccessful contestant, that such contestant have reasonable grounds for instituting the contest.2

§1337. American Decisions as to Costs and Expenses in Will Contests: Points to Be Considered.

In the United States no universal rule can be laid down as to the duty of an executor named in a will, either before or after probate, to resist a contest to have the will declared invalid, or as to his rights for expenses, including counsel fees, which he may expend in that behalf. In many jurisdictions costs are allowed as a matter of course to a successful litigant, but in matters of probate the taxation of costs is often within the discretion of the court and may be apportioned among the various parties. The matter is often regulated by statute. Costs, however, strictly speaking, unless it is otherwise provided by statute, do not include attorney fees.3

When a contest is instituted, the one named in the will or appointed by the court as executor must, unless he is willing to personally bear the expenses of the litigation, ascertain whether he will be entitled to costs and attorney fees in defending the will, and whether such right will depend upon his being successful in his defense. In such a case he must have resort to the statutes and decisions of the particular jurisdiction.

The authorities are so conflicting that no rule can be laid down, but certain points involved in such cases may be mentioned. It may be said that it is the duty of the one named in a will as executor to offer the same for.

2 Spiers v. English, (1907) P. 122; Levy v. Leo, (1909) 25 T. L. Rep. 717; Oldcorn v. Tenniswood, (1909) 25 T. L. Rep. 825.

8 In re Olmstead's Estate, 120 Cal. 447, 52 Pac. 804; Brown v. Corey, 134 Mass. 249.

probate. The law in many instances prescribes penalties if the custodian of the will fails to produce it, and it is a penal offense to destroy or suppress a testamentary instrument. However, the one named in a will as executor can not be compelled to act and his nomination by the testator gives him no such interest in the estate of the testator as authorizes him to contest the will or to contest

a subsequent codicil wherein some other person is appointed as executor in his stead. Yet the testator, by naming one in his will as executor, reposes in him a special confidence which the nominee should observe; and this may be said to be doubly true after the will has been admitted to probate and the nominee of the testator has been appointed executor by the court. Yet the good faith of one in applying for letters testamentary or in resisting a contest of the will, is important. On the other hand it may be said that those who have a beneficial interest in the result of the litigation should assume the burden of protecting their rights. Yet again, on the question as to whether the estate of the decedent should be charged with the expenses of a will contest, it may be said generally that the value of the estate can not be increased by such litigation, no matter which way it may terminate, although the interests of beneficiaries may be greatly affected. These matters, too, in a degree are covered by statutes in some jurisdictions. The most that can be done is to refer to some of the authorities in conflict.

§ 1338. The Same Subject: Conflicting Decisions.

Some authorities hold that an executor or administrator with the will annexed is in duty bound to defend

the will in the event of a contest, while others hold to the contrary. And it has been said that if an executor attempts to defend the will, he takes upon himself the

burden of proving its validity in order that he may be credited for moneys expended in the litigation. Some authorities are to the effect that an executor is entitled to his expenses when he successfully resists a contest." Others distinguish between contests before and after probate, holding that after appointment an executor is required to defend the will and will be allowed costs and reasonable counsel fees expended for such purpose, but that ordinarily no such allowance will be made as to a contest before probate. Yet in a will contest after the probate, the interested parties being represented, it has been held that they and not the estate should bear the expense of the litigation, it not being an expense of

testant can not be ordered by the court to be paid out of the estate. -Matter of Wilson, 103 N. Y. 374, 8 N. E. 731.

Where a contestant in good faith takes an appeal to the supreme court on questions of law and fact worthy of consideration, he is entitled to have the costs taxed against him paid out of the estate.-Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883.

6 Kelly v. Davis, 37 Miss. 76; Clark v. Turner, 50 Neb. 290, 38 L. R. A. 433, 69 N. W. 843; Shaw v. Moderwell, 104 Ill. 64, 65; Moyer v. Swygart, 125 Ill. 262, 17 N. E. 450.

7 Alexander v. Bates, 127 Ala. 328, 28 So. 415; Scott's Estate, 9 Watts & S. (Pa.) 98; Missionary Society v. Goheen, 84 Ill. App. 474; Bruning v. Golden, 159 Ind.

199, 64 N. E. 657; Meeker v. Meeker, 74 Iowa 352, 7 Am. St. Rep. 489, 37 N. W. 773; Phillips' Exr. v. Phillips' Admr., 81 Ky. 328; Succession of Kerman, 105 La. 592, 30 So. 239; Lassiter v. Travis, 98 Tenn. 330, 39 S. W. 226.

Under the Cal. Code Civ. Pro., § 1720, the court may order the costs of contest to be paid out of the estate, and this applies to the costs of an unsuccessful contestant, although this is done only in extreme cases. - Estate of Bump, 152 Cal. 271, 92 Pac. 642. 8 Harrison v. Clark, 95 Md. 308, 52 Atl. 514; Tilghman v. France, 99 Md. 611, 59 Atl. 277. See, also, matter of Allen, 89 Ill. 474.

Until a will is admitted to probate or probate denied, the court can make no award as to costs or attorney fees.-Henry v. Superior Court, 93 Cal. 569, 29 Pac. 230.

administration. Yet, if the executor causes the will to be sustained, he should be allowed his costs and expenses out of the estate when such expense falls ultimately upon those benefited by his action, such as the beneficiaries under the will, since they are the ones who have gained.1o And if the executor protects the estate or sustains the true will as against a forged one, he should be entitled to credit for his expenses.11 Yet it is said that the expense of costs and counsel fees incurred in a will contest can not be charged against the estate since it is not benefited by a decision either way, but that such expense should be borne by the parties interested.12

§ 1339. Effect of Revocation of Letters Testamentary or of Administration: Duty to Account.

Where a will is contested prior to probate and the judgment is that the will is invalid, the instrument must be denied probate and the right to letters of the one named therein as executor fails.13 In a contest after probate and the granting of letters testamentary, or in a contest after the granting of letters of administration of the estate of an intestate, if the grant of probate or administration be revoked, the power and authority of the executor or administrator ceases.14 This does not relieve him from his liability to account for his administration

In re Soulard's Estate, 141 Mo. 642, 43 S. W. 617.

10 Mesick v. Mesick, 7 Barb. (N. Y.) 120; Estate of Scott, 9 Watts & S. (Pa.) 98.

11 Estate of Alexander, 211 Pa. St. 124, 60 Atl. 511. And see Appeal of Sheetz, 100 Pa. St. 197, 199.

12 Brown v. Eggleston, 53 Conn. 110, 2 Atl. 321; Shaw v. ModerIII Com. on Wills-15

well, 104 Ill. 64, 65; Yerkes' Appeal, 99 Pa. St. 401.

13 Estate of Warfield, 22 Cal. 51, 66, 83 Am. Dec. 49; Estate of Richardson, 120 Cal. 344, 346, 52 Pac. 832.

14 Estate of Crozier, 65 Cal. 332, 4 Pac. 109; Clements v. McGinn, 4 Cal. Unrep. 163, 33 Pac. 920; Matter of Blair, 49 App. Div.