Opinion
August Term, 1858.
Upon the trial of an issue of devisavit vel non, the Court has no discretion to make any, but the losing, party pay the costs.
THIS was a motion to direct the taxation of costs, heard before PERSON, J., at the last Fall Term of Lincoln Superior Court.
Lander, Bynum and Thompson, for the plaintiff.
Guion and Boyden, for the defendant.
At the preceding Term of the Court, an issue of devisavit vel non was tried, and the jury found that the paper writing propounded, was not the will of the decedent. Upon this verdict, there was no judgment for costs. The propounders of the script being dissatisfied with the proceedings and judgment below, appealed to the Supreme Court, where the judgment was affirmed.
In the Superior Court below, John Little, the propounder, moved the Court that the costs be paid out of the estate.
The Court heard evidence, and, on consideration, was of opinion that he had no power, at this time, to make such an order; that if he had the power, he would make the order as asked.
From this judgment the plaintiff appealed.
We concur with his Honor, in respect to the power of the Court upon the question of costs. It is true that the probate of a will is "a proceeding in rem," and no one, although cited to hear proceedings, is obliged to make himself a party; yet, when the persons interested make themselves parties for, or against, the alleged will, and an issue is made up, it is to be tried and determined like all other issues; and there is no provision in our statute which distinguishes the proceeding from that of any other matter at common law, as distinguished from a proceeding in Equity. It is admitted that in Equity, there is a broad discretion; on the subject of costs, but in this, which, as we have seen, is a proceeding at common law, the statute gives no discretion; and provides that the costs shall abide the decision of the cause. So, the Court can render no other judgment than that, the successful party recover of the other party his costs. The fund, that is the assets of the estate, is not in court so as to be under its control. The administrator of the deceased is no party to this proceeding; how, then, can the Court enter judgment against him for the costs of a proceeding to which he was not a party, and in which he had no opportunity of being heard in respect to the question of costs, or any thing else?
PER CURIAM. Judgment affirmed.