On a contest before probate of the alleged will of the decedent the jury found for the contestant and judgment was entered accordingly, including costs to the contestant. On motion of the proponent the trial court entered an order vacating the judgment for costs. The contestant *Page 308 appealed from said order and the order was affirmed (Estate ofJohnson, 198 Cal. 469 [245 P. 1089]). On the going down of theremittitur the clerk of this court inserted therein the words "Respondents to recover costs on appeal," in accordance with the rule governing ordinary civil actions. In due time the contestant filed a notice of motion in this court to recall the remittitur and to strike therefrom the provision for costs on appeal on the ground that the allowance of costs in a contest before probate must abide the final determination of the proceeding (sec. 1720, Code Civ. Proc.; Estate of Johnson, supra). The proceeding is finally determined by the affirmance of the judgment on the main appeal this day decided (Estate of Johnson, ante, p. 299 [252 P. 1049]), wherein this court has in the exercise of its discretion under said section 1720 directed that costs on the main appeal be paid out of the assets of the estate. On the former appeal the court did not exercise its discretion in awarding costs pursuant to said section 1720, and the provision for costs on said appeal was improperly incorporated in theremittitur. This motion is the proper remedy on behalf of the contestant to exclude from the remittitur the unauthorized provision (San Joaquin etc. Irr. Co. v. Stevinson, 165 Cal. 540 [132 P. 1021]). As this court has lost jurisdiction of the former appeal, we may not now exercise any discretionary power in awarding costs therein. An appropriate order may, however, be made by the trial court with reference to the costs on the former appeal in the exercise of its discretion under said section 1720.
The motion is therefore granted, and it is ordered that theremittitur issued herein by the clerk of this court on May 20, 1926, be recalled and that a correct remittitur be issued in its place nunc pro tunc omitting the words "Respondents to recover costs on appeal."
Richards, J., Seawell, J., Waste, C.J., Curtis, J., Preston, J., and Langdon, J. concurred. *Page 309