In re Goodridge's Estate

• Decision Date: 15 July 1940
• Citation: 14 A.2d 501
• Court: Maine Supreme Court
• Parties: In re GOODRIDGE'S ESTATE.

14 A.2d 501

In re GOODRIDGE'S ESTATE.

Supreme Judicial Court of Maine.

July 15, 1940.

Exceptions from Superior Court, Cumberland County.

Proceeding in the matter of the will of Philip Goodridge, deceased. The Supreme Court of Probate affirmed a decree of the probate court approving and allowing the will of Philip Goodridge, deceased, and upon petition of one Goodridge, administratrix, praying for allowance of expert witness' fees ordered that such fees be paid out of the estate, and the administratrix brings exceptions.

Exceptions sustained and decree reversed in so far as it allowed payment of expert witness' fees out of the estate.

Argued before BARNES, C. J., and STURGIS, THAXTER, HUDSON, MANSER, and WORSTER, JJ.

Harry L. Cram and Charles E. Gurney, both of Portland, for exceptant.

Clifford E. McGlauflin and Daniel C. McDonald, both of Portland, for contestants.

HUDSON, Justice.

On exceptions to a ruling of law by a

Justice of the Superior Court sitting as Supreme Court of Probate.

The Probate Court decreed approval and allowance of the will of Philip Goodridge, late of Portland, from which an appeal was taken to the Supreme Court of Probate. The appellate court affirmed the decree below and upon the petition of the appellant praying for allowance of expert witness' fees, ruled and ordered that they be paid out of the estate. To this ruling exceptions were taken and perfected.

The only question is whether the Supreme Court of Probate has the right to allow expert witness' fees as costs.

Costs in contested probate cases exist only by statute. Appeal of Hiltz, Appellant, 130 Me. 243, 245, 154 A. 645. Also, costs in other civil cases are allowable only by virtue of statute (Maine Bank v. Osborn, 13 Me. 49, 51; Freeman v. Cram, 13 Me. 255, 260; Mudgett v. Emery, 38 Me. 255) and have statute regulation. Fuller v. Miller, 58 Me. 40; Stilson v. Leeman, 75 Me. 412; Watson v. Delano, 86 Me. 508, 30 A. 114.

Sec. 38 of Chap. 75, R.S.1930, provides: "In all contested cases in the original or appellate court of probate, costs may be allowed to either party, to be paid by the other, or to either or both parties, to be paid out of the estate in controversy, as justice requires; and executions may be issued therefor as in courts of common law."

Costs allowable under this statute rest in the discretion of the court. Peabody v. Mattocks, 88 Me. 164, 167, 33 A. 900. It had been so held in Alvord v. Stone, 78 Me. 296, on page 299, 4 A. 697, on page 698, where it was stated: "Neither party has a legal right to costs. The whole subject of costs rests in the discretion of the court. The power of the court is precisely the same as in equity."

However, to determine the extent of this granted discretion, it is necessary to construe the word "costs" as it is used in the statute. Does it include expert witness' fees? We think not. In Appeal of Hiltz, Appellant, supra, our Court held that it did not include attorneys' fees, because "costs" as used in the statute means taxable costs as ordinarily taxed. To the same effect is Brown v. Corey, 134 Mass. 249, in which the Court declared on page 251 that the probate court "has not the power in contested probate cases to award counsel fees or other expenses as 'costs;' * * *." (Italics ours.)

While it is true, as stated in the Peabody and Alvord cases, supra, that the whole subject of costs rests in the discretion of the court, yet the court does not have the right to extend its discretion over items of asserted costs that are not ordinarily taxed as taxable costs. For instance, it would not be within the discretion of the court to allow a non-expert witness an amount per diem in excess of the fixed statutory fee, although the court felt that justice required that that be done in the particular case. Other costs in probate litigation, such as expense incurred by the use of an expert either in preparatory investigation or in testifying in court, is as much without the pale of the statute as fees of counsel.

This does not mean, however, that one testifying as an expert in probate court may not recover reasonable compensation for such service from the party who uses him in that capacity. Gordon v. Conley et al. (O'Neil v. Conley et al., Twitchell v. Conley et al.) 107 Me. 286, 78 A. 365, 33 L.R.A.,N.S., 336.

Not until 1909 did we have any statutory provision for the payment of expert witness' fees. See Chap. 195, P.L.1909. That statute as amended now reads: "Witnesses in the supreme judicial court or the superior court or in the probate courts and before a trial justice or a municipal court, shall receive two dollars, and before referees, auditors, or commissioners specially appointed to take testimony, or special...