In re Appeal From Register of Wills Upon a Review of Papers Writing Purporting To Be Last Will And Testament of Warrington

• Decision Date: 06 July 1911
• Citation: 81 A. 501,25 Del. 595
• Court: Delaware Superior Court
• Parties: IN THE MATTER OF THE APPEAL FROM THE REGISTER OF WILLS UPON A REVIEW OF THE PAPERS WRITING PURPORTING TO BE THE LAST WILL AND TESTAMENT OF ALFRED C. WARRINGTON, SR., deceased

81 A. 501

25 Del. 595

IN THE MATTER OF THE APPEAL FROM THE REGISTER OF WILLS UPON A REVIEW OF THE PAPERS WRITING PURPORTING TO BE THE LAST WILL AND TESTAMENT OF ALFRED C. WARRINGTON, SR., deceased

Superior Court of Delaware, Kent County

July 6, 1911

Superior Court, Kent County, July Term, 1911.

APPEAL from the decree of the Register of Wills on a review before him of the probate of the papers writing purporting to be the last will and testament of Alfred C. Warrington, Sr. deceased, and the codicils thereto, the court sustaining the rulings and decree of the Register. Application for allowance to counsel for petitioner was denied except for expenses.

Henry Ridgely and John B. Hutton for petitioners for review.

Thomas C. Frame, Jr., for the propounders of the will.

Judges CONRAD, WOOLLEY and RICE sitting.

OPINION

WOOLLEY, J.

At the adjourned April term of the Superior Court for this county argument was heard upon the appeal from the decree of the Register of Wills in the matter of the review of the probate of the papers writing purporting to be the will and codicils of Alfred C. Warrington, Sr.

The court finds, and therefore decides, that under the facts and the law of this case, the rulings and decree of the Register of Wills, as shown by the exceptions filed, are without error; that the papers writing purporting respectively to be the last will and testament of Alfred C. Warrington, Sr., and his codicils thereto, are together the last will and testament of Alfred C. Warrington, Sr.; and that the exceptions filed by the appellants to the rulings and finding of the Register of Wills should not be sustained.

Commenting only upon that exception which relates to the disallowance by the Register of counsel fees for this petitioner's counsel, the court has to say that it knows no rule whereby counsel fees for petitioner's counsel in contested will cases are of right or of course taxable as a part of the costs to be paid by the estate. Indeed, the inclination of the court is to the contrary, as it feels that the allowance of counsel fees as costs constitutes an exception rather than a rule. Obviously in certain cases counsel fees for both parties should be charged against and paid by the estate, but we do not think this case comes within this exceptional class. It is apparent to the court, however, that in the preparation and presentation of this case, counsel for the petitioners have been subjected to...