New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-04-14
THE COURTS.
ALLOWANCES TO CONTESTANTS.

SURROGATE CALvIY's OPINION OF JUDGE DavIs's
RECENT DECISION
The recent opnion delivered in the Supreme
Court Gene1al Term by Judge Davls-a decision ap
peal order OF the late Surrogate IutchDgs-that
the snrrogate's Court under the act of 1870 had
power grant allowance to the unsuccessful party I'm
contested will ease, has created much comment among
the lawyers practcing IN the surrcgates Court and
among the contestants OF wills. III the IN which the
opinion was delivered-that Of TIE contested
Will OF Mary Hearsey-Surrogate Hutchings
made an allowance OF $1,000 in lieu Of
costs to unsuccessful contestant. TRIBUNE
reporter yesterday asked Surrogate Calvin what
he should pursue in number OF similar
pending and in which allowances asked, and what
view be took Of the effect OF the Supreme Court decision
He said :" informed that this decision is to he
vewed-wth what effect cannot presume 10 predict
The decision 10 be contrary TO long and well
settled practice rccog zed and approved by the courts
and eonspcuously opposed to the opinion delivered in
the of Dupuy against wurtz t53d New-York, p
$780, aud Clapp against Fullerton t3ith New York p. 299
In the former which appeal the decision
of the General Term Of this district sustaining the dc
cison of the Surrogate OF NewYork in admitting the
will Of Martha p. Wurn Judge Rapall0 In delivering
the unanimous opinion OF the Court Of Appeals,
The questions not free from difficulty and have
been presented the part of the contestant in evident
good faith They have been argued In this court with
great learning and ability, and carefully aud ably
treated in the opinion of the learned Surrogate We
think the contestant justified In raising the question,
and that under all the circumstances, the costs OF all
parties IN this and In that below should he paid
out OF the estate
ITO the same effect" said Mr.. Calvin might be cited
several other decisions II the decision Of the General
Term shall be sustained will DC likely result In every
executor who Is not also trustee withdrawing from his
trust on the fret suggestion OF contest The law re-
qures Ia present will for probate, and ",
tho performance Of that dty good faith he shall
nc compelled 10 pay The cost Of litigation, including
counsel contest IL must be apparent
that executor would he unwilling 10 resist contest
in any case"
NY only desire is to have the law settled II it shall
e adiudgcd that there authority In this court 10
grant allowances unsuecessu parties Il Will aOid me
relief IN the admins trat.On of Office, for tie de-
termination of the question whether not nneucccss
fu contest made III good faith Is often Of difficulty
well dic Icy, aud calculated 10 Incense class Of
lawyers who encourage contests III tic hope o: beng
rewarded OF tie estate, although they may fail In
the contest Uuiil This apparent c0lict between the
General Tel and the COur; Of Appeals be settled shall
deem II my duty 10 recognize the authority of the Cen
cral Term decision FOR tbc THAT II may be quo--
toned whc thrF tine Oint distinctly raised and passed
upon by TIE Court Of ApOeds.'