Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-03-24

would rather promote litigation than the
| opposite of it. I know that the court has
allowed fees ana costs in some cases but
I think some question has arisen in the
| court as to its power in relation to tina;
matter. Suppose that one of you is ap.
pointed executor of will and it becomes
your duty to prove that will. He may be
in no way interested in the will financial
ly. but from the fact that he is named as
executor it becomes part of his duty t.
go to n reasonable expense to prove the
will. Suppose the will is .disallowed. Is
should have authority to allow the ex-
| pcnseS incurred by the executor in the
performance of his duty notwithstanding
the decision was against him? Now this
bill does not undertake to give anybody
n right to have them allowed 1t simply
authorizes the court if in it's discretion it
| shall come to the conclusion that it ought
to be DONE to do it Do you think that
| somebody will undertake groundless liti-
cation on the prospect of succeeding in
getting 4 judge to allow fees in case of
| that kindT
| This bill simply authorizes the judge
| in n proper case to allow the costs and
| expenses of both Sides and unquestion-
ably there are cases where the party who
| is not sustained in the litigation may suf-
fer great hardship and the estate ought
to bear the expenses as in the case l have
| suggested. where a will is not sustained.
and there is no provision unless the court
| has authority to pay his expenses in per-
| forming his duty. There is nothing objcc-
| tionable or unusual in the bill, and It is
| an authority that the courts ought to
have by statute so they will know what
| their authority is; and I submit that we
can trust the judiciary of this State in
the probate court or in the supreme court
| to well and wisely administer the law.
| and we will be il enable them to do jus
| tice when the case arises in which they
ought to have this authority. I trust the
motion to indefinitely postpone will not
prevail and that the report of the COM
n,ittee will be sustained.
Mr. OAKES of Auburn: Mr.. Speak
, or. my impression is without discus
sing the legal effect of the matter, that
the practical effect of this will be to
extend the allowance of fees from pro-
bate estates, and that has gone pref
ty well to its limit already. | have
known cases where it has seemed to
me unjust, where a small estate has
been loaded with counsel fees, and it
is certainly true that large estates are
loaded proportiOnately. The question
of costs can perhaps be better taken
care of in this way as the law now
stands. 1t seems to me that we are 60
ing a step in the wrong direction when
We add an iD6ucenent TO litigation hy
saying i'm so many words that counsel
fees shall be in the discretion of all the
judges of probate in the State of
Maine i'm the case of any contested
matter. hope that the motion to in
definitely postpone will prevail.
Mr.. MoREY of Lewiston: Mr..
Speaker, think the motion of the
gentleman from Lewiston should pre-
vail. The present law in relation to
costs is one which has been there for
a great many years. and it only allows
to be paid out of the estate the taxa
Bile costs of court 1t does not allow
any counsel fees to be paid. Our law is
based on the law Of Massachusetts.
and the courts of Massachusetts say
that counsel fees shall not be allowed
out Of the estate. I think it fair that
any persons employing an attorney to
contest a will should pay them for it.
and that the estate, when parties do
not want to be dragged into litigation,
should not be made to pay this
amount. If it becomes a law there is
no estate i'm moderate circumstances
but what litigation would be invited to