In re the Probate of the Will of Proben

23 Misc. 2d 993, 202 N.Y.S.2d 342, 1960 N.Y. Misc. LEXIS 2729

Opinion

John D. Bennett, S.

This is a motion by the unsuccessful contestants in a probate proceeding for an order directing that they be furnished with a copy of the stenographer’s minutes of the trial at the expense of the estate.

It is the general rule that “ costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will ” (Surrogate’s Ct. Act, § 278).

The provision in section 278 of the Surrogate’s Court Act that the contestant may be furnished a copy of the stenographer’s minutes of the trial, if satisfied that the contest is made in good faith, has been held to apply only to an application and the granting of an order prior to the hearing (Matter of Engelbrecht, 15 App. Div. 541, citing Matter of Byron, 61 Hun 278). In any event, the decree, which is final, admitting the will to probate, contains no provision reserving the fixation of costs to a later date (Surrogate’s Ct. Act, § 278). The motion is consequently denied.