
    In re Account of J. W. WINSTON et als., Executors of OCTAVIA H. DUKE, Deceased.
    (Filed 18 October, 1916.)
    1. Wills — Costs—Court’s Discretion — Appeal and Error.
    Where the will of the testator has been caveated and the will sustained, and it appears that the estate consisted of lands, the costs of the proceedings are not considered as debts owed by the decedent, under the general rule that residuary legatees are first to be paid; and the taxing of such costs against the estate proportioned among the devisees is a matter within the discretion of the trial judge, which will not he disturbed on appeal. Revisal, sec. 1268.
    2. Wills — Caveat—Surveys—Costs—Executors and Administrators.
    Where certain land contiguous to the lands of other devisees are devised, without direction in the will for a survey or partition or for perfecting the title, the cost of survey and registration of deeds should be borne by the devisees of the lands, and it is not a proper charge against the estate to he paid by the executor.
    PROCEEDING in tbe Superior Court of FranKlin for settlement of tbe final account of tbe above named executors. Tbe cause came before Bond, J., at chambers upon exceptions beard upon appeal from tbe clerk. From the judgment rendered, August Term, 1916, tbe executors of Mrs. Octavia H. Duke, J. W. Winston and J. W. Woodlief, and Joseph W. Winston individually, appealed.
    
      W. H. Ruffin, W. II. Yarborough, Ben. T. Ilolden for appellants.
    
    
      T. T. Hides for Harris heirs, appellees.
    
   Brown, J.

Tbe items excepted to are:

First. To tbe rate of commissions allowed tbe executors.

Second. To tbe allowance of tbe expense of caveat to tbe will of J. W. Duke, aggregating $1,780.41.

Third. To the allowance of $108 for survey of Yance County Duke tract of land and cutting off parts of same as by tbe will of Mrs. O. H. Duke directed.

His Honor overruled tbe first exception, as to rate of commissions, to which there is no exception. He sustained tbe exception to tbe allowance of costs of caveat to will of J. W. Duke as against tbe estate of Mrs. O. H. Duke, and ordered tbe clerk to reform tbe account, find tbe values of tbe property of tbe estate of J. W. Dube, apportion tbe expense of caveat upon the same, and charge the same upon tbe estate of J. W. Duke in tbe bands of the devisees of Octavia Duke. Tbe executors and J. W. Winston excepted. His Honor sustained tbe exception as to allowance of costs of survey of tbe Sam. L. Duke tract and ordered that tbe same be charged against J. W. Winston, devisee. Tbe executors and J. W. Winston excepted and appealed.

J. W Duke died in December, 1910, devising bis entire estate to bis wife, Octavia. He owned real estate and very little personal property. All of it went into the hands of bis widow. A caveat was filed to his will by'bis heirs at law, bis nephews and nieces. Tbe cause was tried and tbe will sustained. Tbe court adjudged that all tbe costs be paid by the estate- of J. W. Duke. These costs amount to $1,780.41. The decree of Judge Bond adjudges that these costs are a charge upon the estate of J. W. Duke. There is no evidence or finding of any personal property now in existence belonging to said estate. J. W. Duke died in 1910, devising all his property, real and personal, to his wife, Octavia, and what little personal estate he owned ivas received and doubtless'consumed in its use by her.

We- think his Honor properly held that said costs are a charge upon the different portions of the estate of J. W. Duke received by the different devisees of Octavia Duke.

The costs and expenses of the caveat proceeding are not in any legal sense a debt of J. W. Duke, and the general rule that residuary legacies are to be taken first for payment of debts and then general or pecuniary legacies has no application.

Upon the termination of an issue of devisavit vel non> raised by a caveat, to a will, the trial judge has a discretion as to taxing costs. He may direct that all the costs be paid by the estate of the testator. Re-visal, sec. 1268. Mayo v. Jones, 78 N. C., 406.

This expenditure was incident to the probate of the will in solemn form, and is in no sense a debt created by the testator. It was incurred for “salvage of the cargo,” in which all were interested. Therefore, the judge correctly ruled that every part of the estate of J. W. Duke must bear its proper and proportionate part of these costs.

The third exception is to the allowance to the executors of $108.50 expended in surveying the land devised by Mrs. Octavia Duke to J. W. Winston and recording title deeds relating to said land.

The will of Mrs. Duke devises the Samuel L. Duke tract of land to Joseph W. Winston, viz.: “All the land contained in said tract except the strip of land between Henry Yaughan and the road and 4 acres adjoining the farm of Robert Yaughan.”

There are also devises of contiguous lands to Henry and Robert Yaughan. There is no direction in the will for a survey for partition or for perfecting the title. It was the duty of the devisees to record the deeds and to have the survey made if desired at their own expense. No authority is given the executors to incur such expenditure on behalf of the estate.

Affirmed.  