Opinion
July Term, 1896.
Edward W.S. Johnston and George H. Taylor, Jr., for the appellants.
Joseph H. Hayes, and Edward S. Clinch, for the respondents.
Present — BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ.
Upon making the original decree which was appealed from, the surrogate exercised his discretion as to the award of costs in the manner which, at that time, seemed to him just. The order of the Appellate Division made upon the appeal was not intended to affect the award of costs made by the surrogate, but applied only to the costs of the appeal. It did not follow, because the Appellate Division awarded costs against the contestants personally upon the appeal, that they should personally be charged with the costs of the original contest in the Surrogate's Court. The direction of the Appellate Division with regard to costs of the appeal had no effect, therefore, upon the decree of the surrogate awarding costs, which stood as effectual unless it was reversed or modified upon the appeal. The fact that the Appellate Division had awarded costs of the appeal against the contestants personally afforded no reason why the surrogate should change his original award. No other reason was suggested, and, therefore, the order appealed from was proper, and should be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.