154 Va. 10 | Va. | 1930
delivered the opinion of the court.
For an understanding of the sole issue presented in this case reference should be made to Smith and
Then this bill was filed to surcharge and falsify the accounts of the executors to the amount of $17,396.68, covering items alleged to have been illegally paid to the three attorneys for the executors for their legal services in the original contest over the will, and
In that ease there was a suit in equity, the object of which was to establish a will alleged to have been lost, mislaid or abstracted. The contention of the plaintiffs was that under that lost will the whole of the estate had been devised and bequeathed to them, and this claim was successfully resisted by eight of the nine distributees. The court said this as to the fees claimed: “Except in rare instances, the power of a court to require one party to contribute to the fees of the counsel of another party must be confined to cases where the plaintiff suing in behalf of himself and others of the same class discovers or creates a fund which enures to the common benefit of all; but the discretion vested in the court should never be exercised in a case where the interests of the party whose fund is sought to be charged are antagonistic to the party for whose benefit the suit is prosecuted."
In Dodd v. Anderson, 197 N. Y. 466, 90 N. E. 1137, 27 L. R. A. (N. S.) 336, 18 Ann. Cas. 738, which is cited and relied on for the appellants, the Court of Appeals, reversing a decision of the appellate division, held that the allowance could not be made under the circumstances of that case; but the emphasis there was placed upon the fact that the will had never been probated, so that the executor never had any letters testamentary, or any duty to perform with reference to the property or to the alleged will, except to offer it for probate. It is impossible to read the opinion without reaching the conclusion that had the will been probated, as the Halstead will had been, reasonable allowances would have been made to the executor whose duty it would have been to resist the attack upon it. There is a note to that case, 18 Am. & Eng. Anno. Cases 741, in which these general statements appear as to the majority view even when there is an unsuccessful attempt to probate:
“In the majority of jurisdictions passing upon the right of a person named as executor in a will to recover from the estate moneys expended by such executor in an unsuccessful attempt to probate the will, it is held that if such person carries on the litigation in a bona
Roy v. Roy, 16 Gratt. (57 Va.) 418, 84 Am. Dec. 696, is among the many cases cited in support of that statement.
Then as to the unsuccessful resistance of attack after probate, this in the same note is said to be the majority view: “The decided weight of authority supports the rule indicated in the reported case, to the effect that after the will has been duly probated it is the duty of the executor named therein to defend suits brought to revoke such probate or to test the validity of the will, and if he acts in good faith he is entitled to receive from the estate his necessary expenditures in defending such attack.” Cases from numerous jurisdictions are cited to support that view.
The subject is elaborately annotated in Wilson v. Wilson, 188 Ky. 53, 221 S. W. 874, 10 A. L. R. 783.
It is impossible to examine the eases and formulate therefrom rules which are applicable to all cases. Positive and dogmatic pronouncements should be avoided. Much depends upon the peculiar circumstances. If the executor acts in good faith, he is generally entitled to reasonable allowances. In most contests, however, it is merely a question between persons who take the estate if the will is established and those who will take it under the law of descents and distributions if not established. In such eases the executor should leave these interested parties to conduct the litigation at their own. expense and to abide its results without imposing substantial charges against the estate represented by the executor.
This case has peculiar features. The estate was a large one, estimated by some to be worth $500,000.00. With one insignificant exception, there was no person
So that there being no living persons who had any direct and substantial interest under the will and no persons except the executor who were charged with any duty whatever as to it. The will was peculiar and doubtless unwise, but this did not relieve the executors of their responsibility, or of their duty to represent the testator, charged as they were by the will with carrying his purposes into effect in so far as it might be legally possible to do so. It could not have been certainly foretold either by expert or layman
Under the peculiar circumstances of this case, we cannot say that the trial court abused its discretion in making the allowances which it is conceded are not only reasonable in amount but were necessary in order to make a proper defense to the vigorous attack upon the testamentary capacity of the testator; indeed, we think the decree appealed from was proper.
The learned trial court judge (Hon. Allan B. Hanckel) has thus expressed himself:
“Even if it is not the legal duty of the executor to propound the will for probate, it is eminently proper that he should do so.
“When he has done so he becomes the personal representative of the testator, empowered and required to execute the will.
“In performing that office he is held to the requirement to act with a reasonable degree of diligence and prudence.
“So far there is, and can be, no dispute.
“When it comes to the duty of defending the will when attacked there is diversity of opinion among the courts.
“What prudence demands and what good faith involves is, of course, largely to be determined by the conditions of the estate and the.particular facts of the individual case. . And I do not think that any fair minded man could read the record in this case and not be impressed with its difficulty and doubtfulness on the facts of testator’s testamentary capacity. And for that reason I am of opinion that the executors were clearly justified in defending the will against attack to the very last court open to them. It seems to me that as personal representatives of this estate they acted in good faith and as ordinary business men in employing counsel to aid them.
“For this reason I am of opinion to overrule the motion to surcharge their accounts.”
Affirmed.