In re the Probate of the Last Will & Testament of Davis

New York Surrogate's Court

In re the Probate of the Last Will & Testament of Davis

6 Mills Surr. 542, 60 Misc. 297, 113 N.Y.S. 287

DecidedJuly 15, 1908

StatusPublished

This text of 6 Mills Surr. 542 (In re the Probate of the Last Will & Testament of Davis) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Probate of the Last Will & Testament of Davis, 6 Mills Surr. 542, 60 Misc. 297, 113 N.Y.S. 287 (N.Y. Super. Ct. 1908).

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Opinion

Ketcham, S.

Where the committee of a lunatic is an unsuccessful contestant upon probate and there has been no special guardian appointed for the lunatic, costs cannot be awarded to the committee. In this case the claim of costs is deserving and would be approved if it were within the power of the court to allow it. Section 2558 of the Code, so far as applicable, provides that costs shall not be awarded to an unsuccessful contestant “ unless he is a special guardian appointed by the court.” It will not do to give costs to the committee on the theory that he is to be regarded as a special guardian. It is to a person “ appointed,” and not to one “ regarded,” that the award is possible.

Decreed accordingly.

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Ketcham, S.

Where the committee of a lunatic is an unsuccessful contestant upon probate and there has been no special guardian appointed for the lunatic, costs cannot be awarded to the committee. In this case the claim of costs is deserving and would be approved if it were within the power of the court to allow it. Section 2558 of the Code, so far as applicable, provides that costs shall not be awarded to an unsuccessful contestant “ unless he is a special guardian appointed by the court.” It will not do to give costs to the committee on the theory that he is to be regarded as a special guardian. It is to a person “ appointed,” and not to one “ regarded,” that the award is possible.

Decreed accordingly.

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Bluebook (online)

6 Mills Surr. 542, 60 Misc. 297, 113 N.Y.S. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-last-will-testament-of-davis-nysurct-1908.