Estate of Phillips ( 1927 )

THE COURT.

This is an appeal from a judgment for costs entered March 3, 1926, against the contestant, George E. Mills, following a judgment admitting to probate the will of date February 3, 1922, as the last will of the decedent. The contest was determined in the trial court and on appeal in favor of the proponent of the will. (Estate of Phillips, ante, p. 490 [261 P. 709].) In ordering that said will be admitted to probate, the court further ordered that the proponent recover her costs, and the judgment from which this appeal was taken was entered after the court had retaxed the costs on motion. [1] It does not appear from the record that the judgment for costs was made a part of the judgment admitting the will to probate. It is therefore assumed that said judgment for costs is separately appealable. [2] The proponent concedes that the allowance of costs so made to her was premature and improper in view of the decision of this court in Estate of Johnson, 198 Cal. 469 [245 P. 1089]. The judgment for costs is therefore reversed.