
    In the matter of the petition for probate of a paper-writing purported to be the last will and testament of Barbara Peppler, deceased.
    [Argued May term, 1943.
    Decided November 4th, 1943.]
    
      Messrs. Vanderbach & Vanderbach (Mr. John J. Fallon, of counsel), for the appellants and respondents on cross-appeal.
    
      Mr. Joseph Steiner (Mr. Israel B. Greene, of counsel), for the respondent and cross-appellant.
   The opinion of the court was delivered by

Colie, J.

John G. Peppier and Henry W. Peppier appeal from a decree advised on December 8th, 1942, by Vice-Ordinary Egan, •whose opinion is reported in 132 N. J. Eq. J$l. The decree denied probate to a paper-writing purporting to be the last will of Barbara Peppier, deceased, and assessed a counsel fee of $1,500 to the proctors for Emiline Roffe, the caveatrix, against John G. Peppier and Henry W. Peppier personally. The decree denying probate to the alleged will is affirmed, for the reasons expressed in the opinion below.

On the question of counsel fees, the Vice-Ordinary did not state his reasons. We deem it advisable to state our view. The court below held that John and Henry Peppier, who were decedent’s sons and the executors named in the instrument which was denied probate, had grossly abused the trust and confidence which testatrix placed in them.' We concur in this finding.

An executor offering a will for probate, acting in good faith and without proof of fraud, is entitled to costs out of the estate, whether probate be granted or refused. 1 KochePs New Jersey Probate Law 233. To the same effect: 2 Redfield on the Law of Wills 112; 28 R. C. L. 407 § 419. Cf. Boylan v. Meeker, 15 N. J. Eq. 310, and Harris v. Vanderveer’s Executor, 21 N. J. Eq. 561, in which costs, expenses and counsel fees were allowed out of the estate in the absence of proof of fraud upon the part of the executor-proponent.' In this case, the gross abuse of the trust and confidence placed in appellants by testatrix warrants the assessment of counsel fees against them personally.

Cross-appellant, Emiline Roffe, appeals from the same decree, asserting error in the denial by the Prerogative Court of her right to have the cost of this protracted litigation assessed against the proponents personally. The decree, as brought up by the printed record, contains no such denial. There is nothing in this regard upon which the court may áet.

The decree of the Prerogative Court dated December 8th, 1942, is affirmed and the cross-appeal of the caveatrix is dismissed.

For affirmance — The Chief-Justice, Parker, Case, Bobine, Donges, Perskie, Porter, Colie, Dear, Wells, Rafferty, Hague, Thompson, JJ. 13.

For reversal — -Heher, J. 1.

For dismissal of cross-appeal — -The Chief-Justice, Parker, Case, Bobine, Donges, Heher, Perskie, Porter, Colie, Dear, Wells, Rafferty, Hague, Thompson, JJ. 14.  