By a statute, which existed, for a long period of time, in this state, the law formerly was, that upon the reversal of a judgment of an inferior court, by the superior court, no costs could be taxed for either party. See Stat. 260. ed. 1808. While that law remained in force, it was decided, by the superior court, that upon the reversal of a decree of a court of probate, no costs could be taxed, upon the ground that an appeal, in such case, was in the nature of a writ of error; and it would be unreasonable that a party should pay costs, for the error of the judge. Mary Sloan’s case, 1 Root, 151.
But the law, in relation to costs upon writs of error, has been subsequently changed, and a statute was passed, in the year 1830, providing that upon a writ of error, in any civil case, if the judgment of any court shall be reversed, it shall be the duty of the superior court to allow and tax the costs against the plaintiff in error, in the same manner as costs of the prevailing party, in any other case. Stat. 94.
Since the enactment of the latter statute, it has been considered competent for the superior court, in conformity with the principles recognized in the case cited, to allow costs *538upon appeals from probate, in the same manner as upon writs of error. It was therefore clearly within the power of the superior court, upon the reversal of the decree of the court of probate, to render judgment for costs in favour of the appellant.
But it is insisted, that, if the court below possessed this power, it erred, in rendering judgment, that the costs should be paid out of the private property of the administrator, and not out of the estate of the deceased. Such, undoubtedly, would have been the correct course, had the erroneous decree of the court of probate been made, without any fault on the part of the administrator; and had his conduct, in relation to the appeal, been nothing more than his duty as administrator required.
But it is found, by the superior court, that the decree was made in consequence of his rendering to the court of probate a false account, charging as uncollectable, a bond, which he knew to be collectable, and a debt, retained by the debtor, by way of set-off, when he knew no such right of set-off existed. Manifestly, then, it was proper to charge him with the costs, arising upon the appeal, if it were competent for the court to do so, in any case. No reason can exist, why expenses incurred by reason of the misconduct and fraud of the administrator, should be borne by the creditors of the estate.
In the case already cited, where it was holden, that ordinarily costs would not be allowed upon the reversal of a decree of a court of probate, it was said, by the court, that when it appears, that the mistake is caused by the fraud or negligence of the adverse party, it would be reasonable to allow costs. Mary Sloan’s case, ubi supra. And it would seem, upon principle, to make no difference, whether the adverse party, in such case, were an administrator, or any other claimant of the estate.
That a judgment, even in a court of law, maybe rendered against a personal representative, for the payment of costs out of his own estate, is unquestionable. Such is the practice in this and other states, where he brings an action at law, and fails to recover. Clark’s exrs. v. Higgins, 2 Root 398. Hardy v. Call, 16 Mass. R. 530.
And in Massachusetts, where they have a statute, by which *539an executor or administrator, dissatisfied with the allowance * of a claim by the commissioners, may give notice thereof, and have the claim struck out of the commissioners’ report, unless the creditor shall commence and prosecute his claim at common law, it has been holden, that the creditor, upon recovering judgment, is entitled to an execution against the personal representatives, de bonis propriis. Burns v. Fay, admr., 14 Pick. 12. Pierce v. Saxton, admr., Id. 274.
In all such cases, however, it is competent for the cijurt of probate, in the exercise of a sound discretion, to allow or charge the costs paid in the administration account, unless the representative conducted improperly, in instituting the suit, in the one case, or in objecting to the creditor’s claim, in the other. 14 Pick. 274.
And this practice prevails, to a certain extent, even in England. Thus, if the executor, in an action of assumpsit against him, as such, plead non-assumpsit, thereby compelling the plaintiff to incur the expenses of a trial; the plaintiff, if he obtain a verdict, is entitled to judgment, in the first instance, de bonis testatoris, and if there are not assets, then as to the costs, de bonis propriis of the executor. Marshall v. Wilder, 9 B. Cress. 655. (17 E. C. L. 467.) And in the latter case, Bayley, J., said, that if the executor plead a plea, false to his own knowledge, he is liable, not only to pay the costs, but the damages also, de bonis propriis.
Perhaps the rule which prevails in a court of chancery, is the most equitable, as applied to the case under consideration. There, as a general rule, wherever a trustee or personal representative, by reason of misconduct or a violation of duty, is the immediate cause of the institution of a suit, upon the charge being established against him, he must pay the costs occasioned by his own improper conduct. 3 Daniel’s Chan. Prac. 1559. Thus, if an executor deny assets, and the contrary be proved against him, he will be liable to costs. So, if his answer be falsified, by proof; and it appears, that he acted from fraudulent motives, he will be made to pay the costs. 3 Dan. Ch. Pr. 1562.
It is further said, that judgment should have been rendered for costs generally ; and the question whether they should be paid by the administrator, from his own estate, or from that of the deceased person, left for the determination of the *540court of probate. But it was the duty of the superior court to settle the principles which should govern the court of probate, in the final settlement of the account; and we know of no reason why they might not as well determine the matter of costs, as any other claim made in the case. The whole subject was fully before the court; and it was competent and proper to dispose of the question, as in their judgment, justice required.
We are, therefore, entirely satisfied, that the superior court possessed power to render the judgment which was rendered, in this case ; and that the power was properly exercised.
In this opinion the other Judges concurred.Judgment affirmed.