
    In the Matter of Proving the Last Will and Testament of Elbert H. Bogart, Deceased.
    
      josts—power of the'surrogate to allow them — waiver of objection to their allowance.
    
    Where a controversy before a surrogate turns upon the correct construction of a will, the contest as to the factum of the will having been withdrawn and .no testimony offered' on that" subject, the surrogate is "authorized to allow costs, under section 2561 of the Code of Civil Procedure, to the successful party. What act on the part of one of the litigants constitutes, a waiver'of objection to the power of the surrogate to grant costs and to the amount thereof, ■considered.
    Application by School District No. 4, in the town, of North Hempstead, to resettle the order of this court on an appeal from a. decree of- the Surrogate’s Court of Queens county by striking out the award of costs made to the contestants by the surrogate, and by •denying them the costs of the appeal in this court.
    The opinion of the court on the. appeal herein is reported in 43 Appellate Division. 582.
    
      E. T. Payne, for the motion.
    
      Henry A. Monfort, opposed.
   Per Curiam :

. The contestants were successful before the surrogate in obtaining' a construction of the will favorable to their interests, and, therefore, the prohibition' in section 2558 of the Code of Civil Procedure, against awarding costs to the unsuccessful contestant-of a will, did not -apply to them. At the time when the proceeding was submitted to the surrogate for decision, however, the contest as. to the faetum of the will had practically been, withdrawn, and the contestants offered, no testimony on that subject. The controversy really turned upon the correct construction of. the will, and in this view the surrogate was authorized to allow costs under section 2561 of the Code.of Civil Procedure. It is argued, however, that the award of costs, even if proper when made, should now be stricken from the decree, inasmuch as the contestants have faded upon their appeal to this court; and, furthermore, that in any event the amount awarded is in excess of that prescribed by section 2561 of the Code. It appears, however, that this allowance to the contestants was really not opposed in the Surrogate’s Court by the counsel for the present moving party, School District No. 4 in the town of Hempstead. Indeed, that litigant procured the decree to be amended so as to obtain an award of costs which had not been allowed it in the original decree, without signifying any objection to the allowance to the contestants, either in respect to the power of the.surrogate to make it, the propriety of making it or the amount thereof. In view of all. the circumstances in this proceeding, we are satisfied that the school district must be deemed to have been virtually a consenting .party to that portion of the decree which awarded costs to the contestants, and for this reason the award made by the surrogate should remain undisturbed.

All concurred. •

Application to resettle order denied.  