Bertine v. Hubbell , 1 Dem. Sur. 335 ( 1882 )

The Surrogate.

Under the provisions of section 2558 of the Code, where a will is propounded for probate, anda contestant propounds, in good faith, a paper in which he is named as executor, and seeks to have it established as the last will, to the exclusion of any other, he may, in case of failure, be awarded costs. I am inclined to think that, where the paper has already been admitted to probate, and a subsequent and successful effort, resisted by him in good faith, is made to revoke it and establish another paper as the last will, he is entitled to costs as in the former case. The reason for allowing costs in the one case is as strong as in the other, the spirit of the contest in both cases being the same. I think, therefore, the section warrants the allowance of costs to the contestant who was executor of the former will, the probate of which is now revoked, there being no doubt as to his having acted in good faith. The motion must be granted.

Ordered accordingly.