Chapin v. Miner

Gbay, C. J. The appellees rely upon the Gen. Sts. c. 92, § 20, which provide that “ upon an appeal from the probate of a will, if it appears from the reasons of appeal that the sanity of the testator or the attestation of the witnesses in his presence is in controversy, the Supreme Judicial Court may for the determination thereof direct a real or feigned issue to be tried by a jury in the same court, at the expense of the appellant if the issue is found against him.” But that provision has never been understood as controlling the discretion of the court in the taxation of costs upon probate appeals. It is a reenactment of the Rev. Sts. c. 62, § 16, and was derived from the Sts. of 1817, c. 190, § 7, and 1783, c. 46, § 4, each of which also provided that “ the Supreme Court of Probate may assess reasonable costs in all cases that may be brought before them by way of appeal from the respective judges of probate.” The St. of 1817, c. 190, § 44, further provided that “ the Supreme Court of Probate and the judges of probate respectively may in their discretion award reasonable costs to either or both parties in all those cases where justice shall require it.” And that provision has been since extended so as to authorize costs to be awarded, at the discretion of the court, “ to eithei [271] party, to be paid by the other, or to either or both parties, to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.” Rev. Sts. e. 83, § 47, and commissioners’ notes. Gen. Sts. o. 117, § 25. It was therefore within the discretion of the justice of this court, before whom the hearing was had, to order that no costs should be taxed to either party, in accordance with the general rule in probate causes. Osgood v. Breed, 12 Mass. 525. Woodbury v. Obear, 7 Gray, 467. Waters v. Stickney, 12 Allen, 1. And that discretion is not open to revision upon bill of exceptions. Exceptions overruled.