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In re Dougherty's Will

Orphans' Court of Delaware, New Castle County

June 6, 1955

In the Matter of the Last WILL and Testament of Elizabeth Veronica DOUGHERTY, Deceased.

Proceeding for review of the probate of a will. The petition for review was dismissed and the Register of Wills entered an order denying application by proponent to tax her counsel fees against contestant as part of the costs of proceeding, and the proponent appealed. The Orphans' Court, Herrmann, J., held that Register of Wills had no specific statutory authority and hence no power to order payment of proponent's attorneys' fees as part of costs to be paid by unsuccessful contestant.

Order affirmed.

Stewart Lynch (of Hastings, Lynch & Taylor), Wilmington, for Catherine Rita Maloney, proponent of the will.

John Merwin Bader, Wilmington, for Ruch M. Connor, contestant of the will.

HERRMANN, Judge.

This appeal arises from a proceeding before the Register of Wills in which Ruth M. Connor petitioned for review of the probate of the will of Elizabeth Veronica Dougherty. After the contestant posted the cost bond required by 12 Del.C. § 1310[1] [49 Del. 275]

Page 662

and after a hearing in which the executrix of the will was proponent, the Register of Wills found that the contestant ‘ failed to make out a prima facie case’ and the petition for review was dismissed.

The proponent then petitioned the Register to tax her counsel fees against the contestant, as part of the costs of the proceeding, and to hold the contestant's cost bond chargeable for the payment of such fees. The Register denied that application and the proponent appeals.

The question for decision is this: May the word ‘ costs', as it is used in 12 Del.C. § 1310 and 10 Del.C. § 5106[2], be construed to include the proponent's counsel fees?

As a general rule, in the absence of statute or contract, a litigant must pay his own counsel fees. In re Equitable Trust Co., Del.Ch., 30 A.2d 271; Maurer v. International Re Insurance Corp., Del., 95 A.2d 827. It is settled that a court may not order the payment of attorneys' fees as a part of the costs to be paid by the losing party unless the payment of such fees is specifically authorized by statute or contract. See Great American Indemnity Co. v. State, 32 Del.Ch. 562, 88 A.2d 426. In its common usage and according to its usual and ordinary meaning in this jurisdiction, the word ‘ costs' does not include counsel fees of the successful litigant. See 10 Del.C.Ch. 51 ‘ Costs'; [49 Del. 276]Peyton v. William C. Peyton Corporation, 23 Del.Ch. 365, 8 A.2d 89; Muhleman & Kayhoe, Inc., v. Brown, 4 Terry 481, 50 A.2d 92; J. J. White, Inc., v. Metropolitan Merchandise Mart, Del.Super., 107 A.2d 892.

The proponent contends, however, that legal fees and expenses have been considered by the court as costs in certain will contest cases and that, since the Legislature is presumed to have been aware of such practice when it enacted 12 Del.C. § 1310, the word ‘ costs' as used in that Statute must be read to include the proponent's counsel fees. The proponent cites In re Warrington's Will, 2 Boyce 595, 81 A. 501; Rodney v. Burton, 4 Boyce 171, 86 A. 826; In re Gordon's Will, 1 W.W.Harr. 108, 111 A. 610; Conner v. Brown, 9 W.W.Harr. 529, 3 A.2d 64.

The proponent's argument is unacceptable for several reasons. It is sufficient to state that the cited cases do not support the proponent's contention. In those cases, the Court dealt with the question of the propriety of an allowance of legal fees and expenses to an unsuccessful contestant as a charge against the estate. Compare DiIorio v. Cantone, 49 R.I. 452, 144 A. 148. The cited cases did not involve the taxing of proponent's counsel fees as costs against an unsuccessful contestant. While the word ‘ costs' appears in certain of the cited cases, it is not used in the sense urged by the proponent.[3] The word is used in those cases in the sense of a proper ‘ cost’ of, or charge against, the estate and not in the sense of a taxable ‘ cost’ against a losing contestant. Indeed, if the cited cases stand for the proposition that the Register may tax the proponent's counsel fees as costs against an unsuccessful contestant, those cases would seem to be in irreconcilable conflict with the recent statement of the Supreme Court in Great American Indemnity Co. v. State, supra.

Since, by common usage and ordinary meaning, the word ‘ costs' does not include counsel fees of a successful litigant [49 Del. 277] and since there appears to be no acceptable reason for according to the word any meaning broader than that ordinarily given it, it is held that the word ...


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