I am at loss to understand how McCarthy and Grose, by presenting the earlier will for probate, gained such a strategic advantage as to entitle them to recover costs and attorney's fees from *Page 630 the estate incurred in their unsuccessful attack upon the later will. Nor do I see how their status as contestants of the later will was changed by the fact that they did not file their objections until after a citation was issued. The issue to be kept in mind in this case is that McCarthy and Grose waged an unsuccessful attack upon the last will and testament of Robert Jolly. In re Jolly's Estate, 197 Wash. 349, 85 P.2d 267. They were actually and technically contestants of that will.
Holding to this issue, the present appeal presents to us a very simple problem in statutory construction which I believe to have been determined, contrary to the conclusion of the majority, in a number of cases. To begin with, this court has held in an unwavering line of decisions that the right to recover costs and attorney's fees is "purely statutory." Meade v. French, 4 Wash. 11,29 P. 833; Pierce County v. Magnuson, 70 Wash. 639,127 P. 302, Ann. Cas. 1914B, 889; Nelson v. Industrial Ins.Department, 104 Wash. 204, 176 P. 15; Victor Products Corp.v. Edwards, 172 Wash. 1, 18 P.2d 1045; Washington RecorderPub. Co. v. Ernst, 1 Wash. 2d 545, 97 P.2d 116.
Applying that rule to the unsuccessful contest of a will, the court, in Jasinto v. Hamblen, 79 Wash. 590, 140 P. 677, said:
"Counsel for the appellants insist that the court erred in not making an allowance for counsel fees and costs to the contestants. The statute, Rem. Bal. Code, § 1313 [P.C. 409, § 127], with reference to proceedings of this kind, says:
"`The fees and expenses shall be paid by the losing party. If the probate be revoked or the will annulled, the party who shall have resisted such revocation shall pay the cost and expenses of proceedings out of the property of the deceased.'
"There is no provision of the code which provides that the costs and expenses of an unsuccessful contest *Page 631 shall be paid out of the estate. And this court has held that costs should not be allowed in such cases. In re Rathjens'Estate, 45 Wash. 55, 87 P. 1070; Hunt v. Phillips, supra [34 Wash. 362, 75 P. 970]. Neither in law nor in good conscience do we think the unsuccessful contest of a will should result in costs and counsel fees against the estate. Such a ruling would,in effect, place a reward upon the contest of every willdisposing of large estates. The trial court properly refused to make such an allowance." (Italics mine.)
This case is, to my mind, controlling of the present controversy, although the statute (Rem. Rev. Stat., § 1389) now reads:
"If the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court. If the will be sustained, the court may assess the costs against the contestant, which costs may in the discretion of the court include a reasonable attorney's fee."
As has been frequently said in subsequent decisions, the statute now vests a discretion in the court with respect to costs. But the discretion has very definite limitations, as a casual reading of the statute reveals. The first sentence obviously is designed to permit the taxation of a successful contestant's costs and attorney's fees against the estate. But, by its terms, the discretion of the court can be invoked only in case the probate be revoked or the will annulled. We have so held. In re Vaughn's Estate, 137 Wash. 512, 242 P. 1094; Inre McKachney's Estate, 143 Wash. 28, 254 P. 455; In reSimpson's Estate, 169 Wash. 419, 14 P.2d 1. In theMcKachney case it is said:
"Contestant further complains that the trial court denied its costs reasonably incurred in the trial. As bearing upon this situation the statute, Rem. Comp. Stat., § 1389, [P.C. § 10020a], says: `If the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court.' Here there was *Page 632 no revoking of the probate nor annulment of the will. The contestant was not entitled to costs. In re Vaughn's Estate,137 Wash. 512, 242 P. 1094."
That the second sentence of the statute merely vests the court with discretion to allow or disallow costs against anunsuccessful contestant seems too plain for discussion. That is the construction put upon it by this court in a number of cases under varying circumstances. When the contest has been waged in good faith and with probable cause, it has been held on the one hand that it was not an abuse of discretion for the court to relieve the unsuccessful contestant from costs, and on the other that it was, under such circumstances, an abuse of discretion to allow costs against him. In re Eichler's Estate, 102 Wash. 497,173 P. 435; In re Hille's Estate, 117 Wash. 205,200 P. 1034; In re Fischer's Estate, 196 Wash. 41, 81 P.2d 836. But further than this the court, until now, has not gone.
Believing that the decision in this case finds no warrant in the statute and that it contravenes a salutary public policy which hitherto has been rigidly adhered to by this court, I dissent.
MAIN, J., concurs with BLAKE, C.J. *Page 633