Gibson

Action to annul a deed to certain lands. Plaintiffs had judgment. They appeal from that part of the judgment which denied them their costs of suit.

Respondent’s contention is, that “in this class of cases the allowance of costs is a matter of discretion to be exercised by the trial court.” (Citing Code Civ. Proc., sec. 1025; Abram v. Stuart, 96 Cal. 235 ; Irvine v. Perry, 119 Cal. 352 ; Bathgate v. Irvine, 126 Cal. 149 ; Senior v. Anderson, 130 Cal. 290 , and other cases.)

Appellants claim that the action involved the title or possession to real estate, and that plaintiffs were entitled to their costs as matter of right under section 1022 of the Code of Civil Procedure.

Plaintiffs and defendant are children of Sarah Gibson, now deceased, who in her lifetime (in April, 1896) conveyed certain real property situated in Los Gatos, California, and certain other real property situated in the city of Omaha, Nebraska, to defendant by two separate deeds of gift. It is alleged in the complaint, and found by the court, that at the time of these conveyances Mrs. Gibson was advanced in years and that her mental and physical powers were somewhat impaired; that she was under the care and…