In re Proving the Last Will & Testament of Devine , 229 A.D. 809 ( 1930 )

Decree of the Surrogate’s Court of Kings county, and decree as resettled, modified so as to provide that costs of trial be awarded to the contestant as prescribed in section 278 of the Surrogate’s Court Act, and as so modified unanimously affirmed, with costs, payable out of the estate, to all parties filing briefs in this court. The matter is remitted to the surrogate to ascertain the number of days occupied by the contestant- at the trial and in preparation therefor, to award costs, and to enter a decree in accordance herewith. The contestant, who was unsuccessful, was named as executor in another will, propounded by him in good faith as the last will of the decedent, and the refusal to award him costs was not a proper exercise of the discretion vested in the surrogate by section 278 of the Surrogate’s Court Act. Present—Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ.