Hicox

Mr. Chief Justice Murray concurred.

Respondent, as administrator of Henry Nail, instituted an action ,, against appellant, in the District Court for Santa Clara County. On motion of plaintiff a non-suit was entered, and judgment rendered in favor of defendant for costs. Afterwards, on motion of plaintiff, said judgment was amended by adding, that the judgment should be made out of the estate of the said Henry Nail, in the hands of said administrator, From this order defendant appeals.

The 144th section of the Act to regulate settlement of estates provides, that “when a judgment is given against an executor or administrator, the executor or administrator shall be individually liable for the costs; but they shall be allowed him in his administration accounts, unless it shall appear that the suit or proceeding in which the costs were taxed, shall have been prosecuted or resisted without just cause.”

This provision was, we think, wisely adopted by the Legislature, for the purpose, of preventing executors or administrators from wasting the property of estates in speculative or unnecessary litigation, by making them, in every case, individually responsible for the costs recovered…