
    Eliza Mallett et al., appellants, v. Isaac Bamber, respondent.
    Although the allowance of the costs, expenses and counsel fees of the cavea-tors against the probate of a will is, by statute, discretionary with the court, yet, when there exist no reasonable grounds for contesting such probate, or the litigation is needlessly protracted and expensive, such allowance should be denied.
    Appeal from decree of Passaic orphans court.
    
      Mr. O. L. Corbin, for appellants.
    
      Mr. S. Tuttle, for respondent.
   THE ORDINARY.

The orphans court of Passaic county, by its decree, after litigation before it, admitted to probate a paper purporting to be the will of Mary Hampson, deceased; and, adjudging that the caveators had reasonable cause' for opposing the will, directed that the costs and expenses of the litigation, and a counsel-fee of $200 to the counsel of each side, be paid out of the estate. From so much of the decree as awards costs, expenses and counsel-fees to the caveators, the proponents appealed to this court. The printed book of the evidence contains over three hundred pages. The testimony was taken by question and answer. The questions are more than twenty-six hundred in number. A great part of the testimony is utterly irrelevant. The caveators were Isaac Bamber, a brother, and William L. Bamber, a nephew of the testatrix. She was a widow, and had no children. By her will, she gave to her brother Peter, in England, $2 a week for life; to two of her nieces, daughters of her sister, Eliza Mallett, $150 each; to Edward A. Absom, an adopted son of Mrs. Mallet, $100, to be paid to him when of age; to her niece, Elizabeth Bridge, $300; to her niece, Leah Bridge, sister of Elizabeth, $200, and directed that a note of $160, given to her by James and Catharine Bridge (the latter was her sister), be given up to them at her decease. To the Ladies’ Protestant Hospital of Paterson she gave $100, if such hospital should exist at the time of her déath, and to the Ladies’ Protestant Orphan Asylum of Paterson, $100, and gave all the rest of her estate to Mrs. Mallett. The will was contested on the ground of incapacity and undue influence, the influence being imputed to Mrs. Mallett. The court very justly adjudged that neither ground of objection was maintained. The award of costs to caveators in such cases is left to the discretion of the court, but it is a discretion which should be carefully exercised; and while, on the one hand, due examination and scrutiny into the circumstances of the making of a will are not to be discouraged, contests not undertaken in good faith, or, if entered upon bona fide, conducted in such a manner as to occasion needless expense, are in no wise to be encouraged. The estate, in this instance, is not large; but whether the estate be large or small, the principles- and the rule are the same. A very careful examination and consideration of the testimony leads me to the conclusion that there was no reasonable ground for the belief on the part of the caveators that the testatrix was incompetent to make a will, or that it was the result of undue influence on the part of Mrs. Mallett. They knew that the testatrix was not well disposed towards them, on account of her resentment of their treatment of her, and they had no reason, under the circumstances, to expect that she would give them any part of her estate, by any testamentary disposition she might make. It is proved that Isaac Bamber, in the winter previous to the spring in which the will was made, urged Mrs. Mallett to get the testatrix to make a will, giving him the same amount which she would give to Mrs. Mallett, and threatened to make trouble by contesting the will, on the ground of undue influence, if she did not do so. He had grievously affronted the testatrix. She had gone to his house to pay a short visit, and she did not find the family at home. She stayed over Sunday, however, and while there entered into familiar conversation with their servant, garrulously giving to her an account of her own life, which had been humble and laborious, and making also some unpleasant but true statements of like character in regard to Isaac and his family. He was very much offended with this, and scolded her severely for it. William L. Bamber also had offended her. He had, as she said, called her “ an old hag.” He denies it, saying that what he said was that, on a certain occasion, she acted like a crazy old hag. He says he did not say so to her, but to Isaac, who told her of it. Between her and Mrs. Mallett there were very close sisterly relations. She confided in the latter fully, and there is no evidence that, in any instance, her confidence was. abused, but, on the other hand, Mrs. Mallett appears to have been careful for her welfare, both as to her personal comfort and her pecuniary affairs. That the confidence which the testatrix reposed in Mrs. Mallett was carried to an unbusiness-like extent, even to leaving in the possession of the latter, for safe keeping with her other papers, the evidence of indebtedness of Mrs. Mallett to her, was not evidence of want of testamentary capacity or of undue influence, but simply of trust in her integrity and fidelity. It appears from his own testimony, that Isaac Bamber did not contemplate opposing the will, and was disinclined to do so (he says because he did not think it worth the trouble), but was finally persuaded, and, yielding to the urgency of others, joined in the caveat. The litigation was not warranted, and if it had been, the extent to which it was carried, in the amount of utterly irrelevant testimony with which the record abounds, would, of itself, be sufficient ground for denying the caveators payment of their costs and counsel-fees out of the estate. Wintermute’s Will, 12 C. E. Gr. 447; S. C. on appeal, 1 Stew. Eq. 437; Perrine v. Applegate, 1 McCart. 531; Collins v. Townley, 6 C. E. Gr. 353.

The part of the decree appealed from will be reversed, but without costs.  