
    Peter A. Browne, Executor of Samuel B. Davis, deceased, v. William H. Rogers, named executor of said deceased.
    The costs of the executor in defending the validity of the will allowed " him out of the estate, "although the will was set aside.
    This was an appeal from an order of the Register of Wills of New Castle County, in the matter of the will of Samuel B. Davis, deceased, directing a certain portion of the costs of the proceedings on an issue awarded by him to test the validity of it, to be paid out of the estate of the deceased. The respondent had been nominated and appointed executor and trustee by the will, which, after a protracted and expensive litigation before the register and upon the issue of devisavit vel non ordered by him, had been set aside by him, and upon which he made the order appealed from, that the costs of the proceeding up to the time of setting aside the will, should be paid as above stated.
    
      D. M. Bates, for the appellant,
    relied upon the general principle and rule of law, that the party failing must pay the costs. 3 Danl. Ch. Prac. 1520; Beams on Costs, 12 Law Libr. 163; 1 Wms. on Exrs. 310.
    
      William H. Rogers, for respondent:
    It had been the uniform practice in this State to allow the executor in such cases his necessary costs and expenses in defending the validity of the will, to be paid out of the estate. It was the duty of the. executor to defend the will when impeached, until it was determined by competent authority not to be the last will and testament of the deceased, and it was but right that the estate should defray the legal costs and the reasonable and necessary expenses incurred by him in the discharge of this duty; and such had always been the practice and ruling in this State. Hearn v. Ross, 4 Harr. 104.
    
      
      D. M. Bates:
    
    The present case differed from the one cited. There the will was sustained, and the result justified the executor in the expenses incurred in vindicating the validity of it. But in this case the result was otherwise ; for the will was set aside, and the executor consequently had not the justification and the same equitable claim upon the estate to be indemnified out of it, for his necessary expenses in defending it. The question had frequently been before our courts, but the practice would be found to be, that in every case where the costs had been allowed out of the estate to the executor, the will had been sustained.
   By the Court:

In the case of Hearn v. Ross, the Court after argument sustained the allowance of the register for the counsel fees paid by the executor in defending the will, and we only confprm to the usual practice in such cases in sustaining the allowance of the register in the present instance. The order appealed from is therefore affirmed.  