Citation Numbers: 76 Misc. 2d 314
Judges: Geleand
Filed Date: 12/3/1973
Status: Precedential
Modified Date: 2/5/2022
In this contested probate proceeding after trial before the court and a jury, a verdict was rendered by the jury finding that at the time of execution of the propounded instrument the decedent lacked testamentary capacity and that the execution of the instrument was caused or procured by undue influence and fraud. The evidence adduced attributed the undue influence and fraud solely to proponent. The court adopted the verdict of the jury on these
Generally speaking, a person named as executor has the duty to bring forward the will and to assume the burden of its probate. Having this duty, he will not usually be burdened with costs if he fails in his effort to have the instrument admitted to probate. But where it is shown, as it was in this case, that the executor was guilty of fraud and undue influence practiced by him personally in the fraudulent execution of the will, and with full knowledge of the fraud he attempted to impose the instrument upon the court as a valid document, it must be concluded proponent was acting in bad faith. In such cases, good morals and public policy dictate that not only should proponent be denied costs but that he be personally charged with discretionary costs for his unsuccessful effort (Matter of Reeves, 266 App. Div. 968, affd. 292 N. Y. 711; cf. Matter of Godlef, 283 App. Div. 1109; Matter of Lachat, 184 Misc. 492, 499, citing cases; Matter of Jackson, 127 Misc. 187).
The court having reached ¿he conclusion that proponent should be taxed personally with costs, the application presents a question as to the amount of said costs. Contestant seeks the sum of $4,100. This amount includes $300 by reason of there having been a contest, $1,200 for 5 days of trial less one, plus $100 per day for 26 days spent in preparation for trial (SCPA 2302, subd. 2, par. [a], subpar. [ii]).
Contestant is allowed the sum of $300 pursuant to SCPA 2302 (subd. 2, par. [a], subpar. [ii]), plus $1,200 for the 5 days of trial, less one. With reference to the application for an additional sum of $2,600 for 26 days necessarily occupied in preparing for trial, while the court is cognizant of the discussion in Matter of Zuckerman (13 Misc 2d 93), it cannot conclude that the intent of the statute is to limit this allowance only to days in which a major portion of the day has been spent solely devoted to the preparation of this case. The realities of legal practice are that a great deal of time may be spent on a matter based on varying periods, over many days, which cumulatively are substantial. The right to costs must rest on a more substantial basis than whether two hours per day over five days were devoted to a matter, or 10 hours in a single day. The intent of the statute is clearly to give the court discretionary power
Accordingly, the total costs allowed to the contestant taxed personally against the proponent is fixed and allowed in the sum of $2,200, plus disbursements of $311.