Estate of Phillips

In this case the appellants move the court for a modification of the mandate. The motion is in the alternative:

(1) That the taxable costs and disbursements of the parties to this appeal be paid out of the estate of Margaret Phillips, deceased; or

(2) That each of the parties to this appeal pay his own taxable costs and disbursements; or

(3) That the right of Donald C. Jacobson, attorney for Ruth Gerten, administratrix of the estate of Clara McKay, deceased, to taxable costs and disbursements against the appellants be determined.

This is a proceeding for the construction of the will of Margaret Phillips, deceased, begun by the appellants. The respondents prevailed in the county court and the petitioners appealed.

The appellants ask the court to exercise its discretion under sec. 251.23 (1), Stats.:

"Costs in supreme court. (1) Discretionary items. In the supreme court, excepting criminal actions, costs shall be in the discretion of the court. In any civil action or proceeding brought to the court by appeal or writ of error, the prevailing party shall recover costs unless the court shall otherwise order, and such costs, unless fixed at a lower sum by the court, shall be as follows: . . ."

Appellants' motion is based upon the decisions in a number earlier cases. These earlier decisions were reviewed in In re Donges' Estate (1899), 103 Wis. 497, 79 N.W. 786. The matter was summed up by the court as follows (p. 517):

"Since, then, such allowances are not supported by any statute, how can they be justified? No good reason is apparent why the expenses of a litigant as to his ownership of property should receive the attention of the court or be paid by another when the litigation takes the form of construing a will, any more than if the same issue were tried in ejectment or replevin; but no one would contend that in the latter case any power to make such order existed in the court. Where parties are sui juris, and each litigating for the promotion of his own interests, each should bear the expense, as he will enjoy the fruits of his own contention; and the existence of a fund over which the court has control in no degree varies the principle involved or justifies infraction thereof. On mature consideration we are convinced that the habit of ordering payment of counsel fees, other than the executor's, is without authority of law and should not longer be indulged in, but that the cases and extent in which one party or any fund shall be required to contribute to the expenses of another in litigation must be limited by the costs statutes."

At that time the statute, sec. 2949, Stats. 1898, merely provided that the prevailing party in the supreme court should be allowed costs. The court had no discretion.

Sec. 2949 became sec. 271.35 of the statutes of 1925. In 1935, it was renumbered sec. 251.23 (1).

By ch. 219, Laws of 1915, sec. 2949 was amended to read as follows:

"In all actions, writs, or proceedings in the supreme court, excepting criminal actions, costs shall be in the discretion of the court. In any civil action or proceeding brought to the court by appeal or writ of error, the prevailing party shall recover costs unless the court shall otherwise order, and such costs, unless fixed at a lower sum by the court, shall be as follows: . . ."

In Kronshage v. Varrell (1906), 127 Wis. 597,107 N.W. 342, the court held under the statute as it existed previous to the amendment that the court had no authority to make allowance out of the estate in addition to the taxable costs and reviewed the whole matter.

By ch. 227, Laws of 1881, which became sec. 4041a, Stats. 1898, it was provided that costs payable out of the estate shall not be awarded to an unsuccessful contestant of the will except in the special cases there provided for. In Stephensonv. Norris (1906), 128 Wis. 242, 264, 107 N.W. 343, it was held that an allowance for guardians ad litem in a case brought to construe a will should be made payable out of the infants' property under the control of the court and not out of the body of the estate.

Will of Weidman (1926), 189 Wis. 318, 325,207 N.W. 950, was a will contest. The appellants raised a question as to costs assessed against them in the circuit court and asked that costs in this court be paid by the estate. The court said:

"No costs could be allowed the contestants in the circuit court. Sec. 4041a (now sec. 324.12). The statute indicates a legislative policy that an unsuccessful contestant of a will stands in the same position as to costs as any other defeated litigant, and this would seem good public policy."

We have cited cases not strictly applicable to the question here under consideration for the purpose of showing that the policy of allowing costs and attorneys' fees out of estates has been gradually restricted both by decision and statute. While it is true that costs in this court are in the discretion of the court, this discretion has not been exercised except where there is some special reason for it. No such reason appears in this case. The statute applies to all except criminal cases. Parties to contests over estates are in no different case than other litigants. At a time when the statute specifically provided that attorneys' fees might be allowed in will-contest cases out of estates, it was held that this did not authorize allowance of attorneys' fees in cases involving the construction of a will. The facts in this case are not such as to justify a departure from the general rule. We see no reason why the statute should not apply as written and costs be taxed against the appellants. Nor do we see any reason why counsel for Ruth Gerten, administratrix of the estate of Clara McKay, deceased, should be allowed costs out of the estate of Margaret Phillips.

By the Court. — Motion to modify the mandate is denied; no costs to be taxed by the respondents except their disbursements.