
    In the Matter of the Probate of the Last Will and Testament of Mary A. Waldron, Deceased.
    (Surrogate’s Court, Kings County,
    November, 1911.)
    Wills — Probate, establishment and annulment — Probate — Costs — Allowance to unsuccessful contestant.
    The executor named in an instrument that has been admitted to probate as a last will and testament may be allowed his costso and necessary disbursements and expenses in an unsuccessful contest of the probate of a later will, but can only be allowed the amounts he has actually expended.
    Proceeding upon the probate of a will.
    M. E. McGoldrick, for proponent.
    Joyce & Kavanagh, for contestant.
    Myles Purvin, special guardian.
   Ketoham, S.

Before the propounded paper came to light a will of earlier date was admitted to probate. In this earlier will the husband of the testatrix was named as executor, and upon its probate létters were issued to Mm, which he still holds.

• As such executor, he has contested the later will, without success. He now asks that he be awarded costs, necessary disbursements and expenses incurred by him in the attempt to sustain the will in which he was named.

It will be the finding of the court that he propounded the earlier will in good faith and, if necessary, that he has waged the present contest in good faith.

By the amendment, in 1911, of section 2558 of the Code of Civil Procedure, it is provided that, if the unsuccessful contestant is named as an executor in a paper propounded by him, in good faith, as the last will of the decedent * * * such person so named as executor may, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.”

While the profession has supposed that this- amendment was provoked by the case of Dodd v. Anderson, 197 Ü5T. Y. 466, and was in tended, to indemnify the unsuccessful proponent for his outlays made in good faith, such intention, if conceived by the Legislature, has been so obscured that only the most zealous and generous construction will reveal it.

The text of the statute is, however, perfectly adapted to the present case, of one who, holding letters under ■ another will, is an unsuccessful contestant of the instrument admitted tc probate.

The statute only permits the allowance of disbursements made ” and expenses “ incurred,” and the decree will be held until proof is made of the sums actually paid

Decreed accordingly.  