Heiss v. Murphey

43 Wis. 45 | Wis. | 1877

Ryan, C. J.

It was not a mere right, it was almost the duty, of the executor, to take the opinion of the court upon the construction of the will and the validity of the disposition which it purported to make of the testator’s property. This appears sufficiently from the former judgment in this case. Heiss v. Murphy, 40 Wis., 276. And it would be most oppressive on the executor, that he should be held to do so at his personal cost and risk. If it wére necessary to make a precedent in such a case, we should probably not hesitate in doing so. Rut the authorities cited for the respondent clearly establish the general rule of courts of equity, that an executor may always, in a proper case, take the opinion of the court upon the will, at the expense of the estate.

The executor here has no interest in the will, except as executor; and the objection to the very moderate amount allowed for his expenses, by the judgment, comes with rather an ill grace from the appellants, whose right to the estate is established by the judgment, and who thus reap a direct advantage from the proceeding of the executor.

By the Court. — The judgment of the court below is affirmed.