56 Ind. App. 663 | Ind. Ct. App. | 1914
Charles Dammeyer was nominated executor in an instrument made by Edward C. Dickman, which purported to be his last will and testament. When this purported will was offered for probate, objections were filed, and Dammeyer, in the capacity of nominated executor, engaged appellant as attorney to secure its probate. There
The question is, Can one named executor in a purported will, who in good faith seeks to establish it, and engages counsel to defend the validity of the will when its probate is objected to, bind the estate to pay for the services of such counsel," where the result of the probate proceedings is to declare the will invalid?
In the present case the facts differ from either Nave v. Salmon, supra, or Fillinger v. Conley, supra, and the reasons given by the court for allowing fees in those cases fail. The executor not having qualified, and no letters testamentary having been issued to him, he was not the official representative of the estate, with power to bind it as an officer of the court. The will having been found invalid, the services rendered in its defense did not inure to the benefit of the beneficiaries named therein. In spite of these facts appellant asserts that services were rendered to the estate, in that all matters relating to it were thoroughly investigated, and also argues that the executor should have the same right to bind the estate for counsel fees expended in defending a will before probate as he has after probate, if he acts in good faith. This latter contention is supported from authorities where the duties of an executor are those imposed by the common law, but the rights and powers of an executor at common law are much greater than under our statutes.
Appellee relies very largely upon the case of Dodd v. Anderson (1910), 197 N. Y. 466, 90 N. E. 1137, 27 L. R. A. (N. S.) 336, 18 Ann. Cas. 738. In that case the plaintiff, in the effort to carry out the wishes of his deceased uncle, decided to accept the office of executor for which he had been named, and not only offered for probate the paper purporting to be a will, but waged an active, prolonged and expensive contest to establish its validity, and in so doing personally bound himself for counsel fees. The reasoning of the court in that case is so cogent and convincing, that we adopt the following extract from the opinion, without
We are of the opinion that the trial court committed no error, and the judgment is affirmed.
Note. — Reported In 104 N. E. 385. As to general principle controlling right to contest wills, see 130 Am. St. 187. As to who may