On Motion for Rehearing.
MR. JUSTICE ANDERSONdelivered the opinion of the ■court.
By their petition for rehearing appellants ask that the opinion as already rendered be modified so as not to impose costs against them, and to allow their costs and attorneys’ fees on appeal as a charge against the estate. Respondents have filed objection that such provision for payment of costs and attorneys’ fees is not justified by the facts and the law controlling.
Nothing was said about the matter by either side in the presentation of the appeal, and without any order of the court .appellants would be subject to payment of respondents costs. However, it is matter for consideration by the court, and is properly before us by the petition as filed.
*278The contest was defended in good faith. The will had every appearance of regularity, both in its dispositional provisions and its execution. The only question was whether it represented the free will of the testator made while his mental faculties were competent to form the intent necessary thereto. The question arose regularly in the proceeding for probate and the litigation thereof was necessary to a correct determination of the distribution of the estate. There were law questions of sufficient importance, and with some uncertainty therein, so it cannot be said but that the appeal from the adverse judgment in the court below was prosecuted in good faith.
There is no specific provision by statute for allowance of costs, nor of attorneys’ fees, to an unsuccessful proponent of a will, where the contest arises in 'the proceeding for its admission to probate. Section 10047, Revised Codes, provides for such allowance of costs out of the property of the decedent, in the discretion of the court, in a contest of a will after its admission to probate. Had the Mickich will been admitted to probate, and the contest had thereafter arisen, allowance of costs to the eontestee would then have been proper under ■ section 10047, as was done in In re Carroll’s Estate, 59 Mont. 403, 196 Pac. 996. However, there is general provision in section 10372, Revised Codes, for allowance of costs in proceedings in probate, covering cases for which there is no specific provision therefor. That section provides that “when it is not otherwise prescribed in sections 10018 to 10464, the district court, or supreme court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. * * *” The proceeding here is such as is provided for in the Probate Code and included within the sections referred to in section 10372. The costs in question, therefore, may, in the discretion of the court, be allowed out of the assets of the estate. (In re Bielenberg’s Estate, 86 Mont. 521, 284 Pac. 546.)
As to attorney’s fees, there is no express provision by statute for allowance thereof in a proceeding such as this. It was done *279in the Bielenberg Case. Attorneys’ fees to the unsuccessful proponents of the will, for services rendered in the prosecution of the appeal, were allowed as costs payable from the assets of the estate. The Bielenberg decision is commented on in the later case of In re Baxter’s Estate, 94 Mont. 257, 22 Pac. (2d) 182, the court saying that the propriety of such allowance as part of the costs was really not therein decided, not having been squarely put before the court. In the proceeding below such an allowance had been made, on agreement of the parties, for services of proponents’ attorneys therein rendered, and in the proceedings on appeal the matter was presented in such a way as to give the impression that counsel would be content with the appellate court following the agreed disposition of the matter in the court below as a just disposition of the question in its relation to the proceeding on appeal. At least that is the view expressed in the Baxter Case.
In the case of In re Hauge’s Estate, 92 Mont. 36, 9 Pac. (2d) 1065, also referred to in the Baxter Case as not decisive of the question, attorneys’ fees were allowed an unsuccessful litigant in a proceeding to determine the qualifications of the beneficiary named in the will to take as a beneficiary. The court, in its opinion, bases the allowance on section 10372. The proceeding in that case was under Chapter 139 for the Code of Civil Procedure, which provides for special proceedings to determine heir-ship. (Secs. 10324, 10325 and 10326, Rev. Codes.) We find therein provision for the cost of such proceeding, section 10326 providing that “the cost of the proceedings under this chapter shall be apportioned in the discretion of the court or judge.” That provision — regarding the word “cost” as more comprehensive than the word “costs” which has limited statutory definition — though not referred to, might be considered as enlarging the scope of allowance beyond the items of costs specified in the statute of general application, (sec. 9802, Rev. Codes), justifying the inclusion of attorneys’ fees as costs in such special proceeding.
As it appears to us, the question of allowance of attorneys’ *280fees in will contests has not been clearly determined by the decisions of this court, and this now seems to be the time "when it is squarely presented and necessary to a decision.” (In re Baxter’s Estate, supra [94 Mont. 257, 22 Pac. (2d) 187].)
It is well settled law in this state that attorneys’ fees are not allowed as costs under statutory provisions for costs in ordinary litigation. It is only where provided for specially by statute, or by agreement of the parties, that attorneys’ fees may be considered at all as an item of recovery incident to litigation. (Smith v. Fergus County, 98 Mont. 377, 39 Pac. (2d) 193; Bovee v. Helland, 52 Mont. 151, 156 Pac. 416.) In the Bovee Case, attorneys’ fees were allowed as costs, but because the parties had agreed it should be so.
To get away from this general rule in any case, and where we must look to the law for the authority, we must find in the statute law special provision, expressly or by implication authorizing the allowance. "We find no such provision in the law governing the proceeding in this case. We are therefore without authority to allow attorneys’ fees even though our discretion might otherwise prompt us thereto.
The costs incurred by appellants in the prosecution of the appeal are allowed out of the assets of the estate. Attorney’s fees are not allowed. No costs are imposed as against the appellants.
The decision as heretofore rendered is modified with the addition of the foregoing, and the petition for rehearing is denied.
Mr. Chief Justice Johnson and Associate Justices Erickson and Morris concur.