140 Ga. 707 | Ga. | 1913
A paper purporting to be the last will and testament of Eeuben A. Credille was admitted to record as having been proved in common form, and letters testamentary issued to Florence Credille, the person nominated therein as executor. Certain children of Eeuben A. Credille filed a proceeding requiring probate of the will in solemn form, and entered their caveat thereto. The executor employed counsel to probate the will per testes, and a long litigation ensued. The result of the first trial was in favor of the caveators, and the verdict was set aside by the Supreme Court. 123 Ga. 673 (51 S. E. 628). A second trial was had,, which again resulted in a verdict for the caveators; and this verdict was upheld. 131 Ga. 40 (61 S. E. 1042). Administration was then had upon the estate of Eeuben A. Credille, and the administrator brought a bill for direction, praying instructions, among other things, whether he should pay from the assets of the' estate the fee of certain attorneys for services rendered to the executor in the litigation over the probate of the will in solemn form. The case was referred to an auditor, who reported, on this issue, that the services rendered by the attorneys were reasonably worth the sum demanded; and that the employment was in behalf of the estate, and not by the executor as an individual, though he was personally interested in the probate of the will.
1. We think that the executor’s right to be compensated out of the estate for necessary expenses incurred in an unsuccessful attempt to probate a will in solemn form, at the instance of an heir at law, after the will has been probated in common form, depends upon the duty of the executor in this respect towards the' estate he represents. According to the English ecclesiastical law a will was proved in common form on the oath of the executor and without notice, but after it had been proved in common form the executor could be compelled to prove it in solemn form. This is spoken of as calling in the probate. This could be done at any time, unless there was unreasonable delay in making the application. Our statute, however, limits the time to seven years, and with this modification our statutes concerning the probate of wills in common and solemn form do not substantially differ from the old English ecclesiastical law. Vance v. Crawford, 4 Ga. 445; Brown v. Anderson, 13 Ga. 171; Hoyle v. Hasted & Pearson, 6 Eng. Ecc. Rep. 313.
Where an executor proves a will in common form on the oath of one of the witnesses, and heirs'at law call upon him by an application in writing, duly served, to appear before the ordinary and show cause why the probate should not be set aside on the ground
3. The good faith of the counsel employed, or their ignorance, of the executor’s fraudulent intent or purpose, is immaterial. Their right to be paid from funds of the estate of the deceased is not primary, but secondary. It is only when the executor may create a lawful charge against the estate that counsel may be compensated out of the assets of the estate.
Judgment reversed on doth hills of exceptions.