Brown v. Corey
| Decision Date | 28 February 1883 |
| Citation | 134 Mass. 249 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | William O. Brown, executor, & another v. Nellie H. Corey |
Argued October 5, 1882
Worcester. Appeal from a decree of the Probate Court allowing the will of Walter Heywood. Hearing before C. Allen, J., who reported for the consideration of the full court the following case:
Issues were framed for a jury, and a verdict was rendered sustaining the validity of the will. The decree of the Probate Court was affirmed, and the case was remitted to that court for further proceedings.
The executor of the will took no part in the trial, but the case was carried on by the other appellee, Lydia R. Heywood, the widow and one of the legatees; and all expenses of counsel and witnesses were incurred by her. She moved that her costs to be taxed as between solicitor and client, might be ordered to be paid by the appellant, or out of the estate of the deceased. The presiding justice ordered that the taxable costs be paid to her out of said estate, and was of opinion that, in justice and equity, the other reasonable charges and expenses of establishing the will should also be paid to her out of said estate; but, being of opinion that he had no legal right to order such other charges and expenses to be paid out of the estate, declined, for this reason only, to order the payment out of the estate of any charges and expenses except the taxable costs as above stated. If such reasonable charges and expenses could legally be ordered to be paid to her out of the estate, the same were to be taxed by a single justice.
Order affirmed.
F. P Goulding & H. C. Hartwell, for the appellee.
G. A Torrey, for the appellant.
Morton, C. J. C. Allen, Colburn & Holmes, JJ., absent.
The decision of the question presented in this case turns upon the construction of our statutes regulating costs in probate proceedings. The statute provides that, "in cases contested either before a Probate Court or before the Supreme Court of Probate, costs in the discretion of the court may be awarded to either party to be paid by the other, or to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity may require." Pub. Sts. c. 156, § 35.
If this were a new statute, to be construed by itself, there would be ground for the argument that the amount of the costs was to be within the discretion of the court, as well as the party to or by whom they were to be paid. But, upon examining the history of this provision, we think it cannot fairly receive this construction. It is taken without change from the General Statutes. Gen. Sts. c. 117, § 25. The provision in the General Statutes was intended as a reenactment of the Rev. Sts. c. 83, § 47, which provided that, "in all cases that are contested, either before the judge of probate, or in the Supreme Court of Probate, the said courts respectively may, in their discretion, award costs to either party, to be paid by the other, or to either or both parties, to be paid out of the estate which is the subject of the controversy, as justice and equity shall require." By the natural construction of this provision, the discretion applies to the power to award among the parties, and not to the thing to be awarded, which is defined as "costs," a term of frequent occurrence in our statutes, meaning legal or taxable costs, and not including counsel fees. The change in the arrangement of the language, in the reenactment of this provision in the General Statutes, was probably accidental, as the report of the commissioners does not suggest, and there is nothing to lead us to suppose, that any change in the law was intended. The provision of the Revised Statutes was derived from the Sts. of 1783, c. 46, § 4, and 1817, c. 190, § 44. Under the latter statute, which provided that the courts "may in their discretion award reasonable costs to either or both parties, in all those cases where justice shall require it," it was held that legal costs only could be allowed, and not counsel fees or other expenses. Swan v. Picquet, 4 Pick. 465.
Similar statutes have received a similar construction. The Rev. Sts c. 109, § 21, provided that in a trustee process, when a claimant is admitted as a party, "the court may, at their discretion, award costs, between him on the one part, and the attaching creditor and the supposed trustee, or either of them,...
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In re Estate of King
...power in such equity proceedings had also included the authority to award "expenses," including attorney's fees. In Brown v. Corey, 134 Mass. 249, 250-251 (1883), however, this court held that the statute did not permit such awards of "expenses" or fees in probate proceedings. In 1884, not ......
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Fuller v. Trs. of Deerfield Acad & Dickinson High Sch.
...The power to award counsel fees in contested will cases does not exist apart from express statute. G. L. c. 215, § 45; Brown v. Corey, 134 Mass. 249;Willard v. Lavender, 147 Mass. 15, 16 N. E. 582;Ensign v. Faxon, 224 Mass. 145, 148, 112 N. E. 948. The allowance of counsel fees in divorce a......
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Lewis v. Nat'l Shawmut Bank of Boston
...power to award to parties expenses in addition to taxable costs was first added by St.1884, c. 131, shortly after the decision in Brown v. Corey, 134 Mass. 249, wherein it had been held that only ‘legal or taxable’ costs would be allowed in probate proceedings. Mulloney v. Barnes, 266 Mass.......
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Mulloney v. Barnes
...taxed under the above statutes were legal and taxable costs only. Osgood v. Breed, 12 Mass. 525, 536;Swan v. Picquet, 4 Pick. 465;Brown v. Corey, 134 Mass. 249;Morrill v. Wiseman, 134 Mass. 252, note. Under St. 1884, c. 131, and G. L. c. 215, § 45, a party to the contest, other than a fiduc......