
    Matter of the Probate of the Last Will and Testament of Frederick A. Davis, Deceased.
    (Surrogate’s Court, Kings County,
    July, 1908.)
    Wills — Probate, • establishment and annulment — Probate — Costs — Allowance to unsuccessful contestant — To committee of lunatic.
    The committee of a lunatic who unsuccessfully contests the probate of a will is not a special guardian appointed by the court to whom costs may be awarded under section 2558 of the Code of Civil Procedure.
    Proceeding upon the probate of a will.
    Campbell & Pape, for proponent.
    Harris, Corwin, Gunnison & Meyers, for Hannah Davis and Home Trust Company, as committee, contestant.
    David Murray, for Asher Murray, general guardian of Anna M. Merwin and George Merwin, infants, contestant.
   Ketcham, S.

Where the committee of a lunatic is an unsuccessful contestant upon probate and there has been no special guardian appointed for the lunatic, costs cannot be awarded to the committee. In this case the claim of costs is deserving and would be approved if it were within the power of the court to allow it. Section 2558 of the Code, so far as applicable, provides that costs shall not be awarded to an unsuccessful contestant “ unless he is a special guardian appointed by the court.” It will not do to give costs to the committee on the theory that he is to be regarded as a special guardian. It is to a person appointed,” and not to one regarded,” that the award is possible.

Decreed accordingly.  