The plaintiff was named as executrix in certain instruments purporting to be the last will and testament and a codicil thereto, of Aaron McKenney, deceased. She presented the will and codicil to the probate court for probate and allowance. The validity of the will and codicil was contested, but they were allowed by the judge of probate. An appeal was taken to the Supreme Court of Probate, and the case ivas tried to a jury on two issues: 1, whether the testator was of sound mind when he executed them : 2, whether they were procured by the undue influence of the plaintiff. The verdict sustained the will, but was against the codicil on both grounds. A final decree was entered allowing the will, but rejecting the codicil; and the decree was certified to the probate court. The decree was silent as to costs.
This action is brought by the plaintiff against the defendant *299as administrator on the estate of said McKenney, to recover her costs, expenses and disbursments in the prosecution of that suit. We think it can not be maintained.
What power the appellate court had over the matter of costs is to be exercised in its discretion, and its exercise must depend upon the facts and circumstances of the case. " In all contested cases in the original or appellate court of probate, cost may be allowed to either party, to be paid by the other, or to either or both parties, to bo paid out of the estate in controversy, as justice requires.” E. S., c. 63, § 30.
Neither party has a legal right to costs. The whole subject of costs rests in the discretion of the courts. The power of the court is precisely the same as in equity. The decree of the appellate court was final, and ended the litigation testing the validity of the will and codicil. The suit was no longer before the court. When the allowance of costs is in the discretion of the court and a final decree or judgment is entered without including costs, no costs can be recovered. Costs are the mere incident of the judgment, and if not included in it, are lost. Stone v. Locke, 48 Maine, 425, and cases cited. In such case, a final decree, silent as to costs, is as conclusive a bar to a recovery of them as if it affirmatively disallowed them. This court no longer has any jurisdiction over the subject.
But if it had, it is clear that, under the statute, it is a discretionary power; and it is difficult to perceive how an action at law, a recovery in which is a matter of legal right, can be maintained. The parties had a right to trial by jury. Is the discretion of the court to be exercised by the jury? The case appears too clear for further discussion. The same question is carefully considered and determined in Lucas v. Morse, 139 Mass. 59.
Judgment for defendant.
Peters, C. J., Walton, Virgin and Poster, JJ., concurred.