In re the Probate of the Last Will & Testament of Davis

Where the committee of a lunatic is an unsuccessful contestant upon probate and there has been no special guardian appointed for the lunatic, costs cannot be awarded to the committee. In this case the claim of costs is deserving and would be approved if it were within the power of the court to allow it. Section 2558 of the Code, so far as applicable, provides that costs shall not be awarded to an unsuccessful contestant “ unless he is a special guardian appointed by the court.” It will not do to give costs to the committee on the theory that he is to be regarded as a special guardian. It is to a person “ appointed,” and not to one “ regarded,” that the award is possible.

Decreed accordingly.