Schwarz v. Taeger , 44 Idaho 633 ( 1927 )

Appellant Christian F. Schwarz' motion for an allowance of costs, disbursements and attorney's fees incurred as proponent for probate of the will of Otto Henry Schwarz, deceased, which will was contested by respondent, was denied and appellant brings this appeal.

Appellant first relies on C. S., secs. 7769 and 7771. C. S., sec. 7769, provides for the appointment of an attorney by the court for minor legatees, devisees, heirs or creditors, and therefore would not include appellant because no such appointment was made, and consequently appellants do not come within such provisions of the statute.

C. S., sec. 7771, provides as follows:

"When it is not otherwise prescribed in this title, the probate court, or the district or supreme court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. Execution for the costs may issue out of the probate court."

This section is identical with California Code of Civil Procedure, sec. 1720, which has been construed as applying to a contest before probate, the situation herein. (Estate ofJones, 166 Cal. 147, 778, 135 P. 293), and the discretionary power given the court cannot be exercised until the final determination of the litigation. (Estate of Berthol, 163 Cal. 343,125 P. 750; Henry v. Superior Court, 93 Cal. 569,29 P. 230; Estate of Yoell, 160 Cal. 741, 117 P. 1047; Estateof Jones, supra; In re Johnson's Estate, 198 Cal. 469,245 P. 1089.)

Schwarz v. Taeger, ante, p. 625, 258 P. 1082, under which appellant is claiming and which is now before the court, was reversed and remanded for a new trial and thus has not been finally determined, and the lower court has no discretionary power to award costs until the litigation has come to a definite end, and the trial court did not err in denying appellant's motion.

The judgment is affirmed. Costs of this appeal awarded to respondent.

Wm. E. Lee, C.J., and Budge and T. Bailey Lee, JJ., concur.

Taylor, J., concurs in the conclusion reached.