76 N.W.2d 677 | Minn. | 1956
This is an appeal from a summary judgment entered in the District Court of Hennepin County which denied the claim of the claimant for attorney’s fees and for expenses and disbursements incurred by him in his attempt to sustain a will signed by the decedent, Anna G. Healy.
On August 25, 1943, decedent executed what purported to be her last will and testament. At the time of her death on January 22, 1952, she left surviving as her heirs at law — her brother, Edgar E. Edgerly; a nephew, Nicholas E. Theis; and a niece, Ada Mauer. Her estate, consisting chiefly of cash and securities, was in excess of $23,000. By her purported will she bequeathed $1,000 to her brother; $1,000 jointly to Henry L. Loesch and Ava L. Loesch, who were friends of the family; and the entire residue was left to her attorney, William L. Hursh, the claimant in the instant case, who was also named executor in the will.
The heirs all filed objections to the allowance of the will on the grounds: (1) That decedent lacked testamentary capacity to make a will and (2) that the will was void because of undue influence exercised upon the decedent by the claimant and his wife. The legatee Ava L. Loesch waived her legacy, renounced the will, and testified against its allowance. The probate court of Hennepin County disallowed the will upon both of the grounds stated. On appeal to the district court, it was found that the will was not procured through the exercise of undue influence, but it was also found that the decedent lacked the testamentary capacity to make it and it was again disallowed. On appeal to this court, the decision of the district court was in all respects affirmed.
Claimant bases his claim for attorney’s fees, expenses, and disbursements on M. S. A. 525.49, which reads in part as follows:
“When any person named as executor in a will or codicil defends it or prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, or if any person successfully oppose the allowance of any will or codicil, he shall be allowed out of the estate his necessary expenses and disbursements in such proceedings together with such compensation for his services and those of his attorneys as the court shall deem just and proper.”
The right of an executor named in a will to recover his expenses incurred in an unsuccessful effort to sustain the will did not exist in this state prior to the enactment of L. 1921, c. 210, § l.
Eespondent contends, however, that, since claimant was the principal legatee of the will, the litigation which he carried on in this case was for his sole personal gain and benefit and was not beneficial to the estate; that the statute was never intended to cover or permit an allowance in such a situation; and that the district court was right in concluding as a matter of law that such litigation was not carried on “in good faith” and “with just cause.”
This contention of the respondent fails to recognize the full scope of the executor’s function and duties. The executor has been characterized by this court as the “ ‘minister or dispenser of the goods of the dead,’ proceeding exclusively in auter droit — in the right and title of his decedent.”
“* * * The statute specifically limits recovery to any person named as an executor in a will or codicil. It is the duty of any person named as executor in a will or codicil to do all things m Ms power to sustain the will. He has been properly termed the champion of the will. That clearly is the reason the legislature provided for the
Thus, the executor, acting in good faith, is under a duty to see that the assets constituting the testator’s estate are not diverted from the course prescribed by the testator.
In allowing any person
Respondent cites certain testimony from the record in the will-contest case previously before us
While the fact that an executor has a personal interest in sustaining the will is a factor to be considered on the issue of “good faith and with just cause” in determining his right to an allowance, it does not in and of itself necessarily preclude him from receiving an allowance out of the estate for reasonable attorney’s fees and other expenses and disbursements incurred in defending the will against attack.
The instant case is not controlled by our decision in In re Estate of Boese, 217 Minn. 583, 15 N. W. (2d) 16, as respondent contends. In that case, after the executor named in the will had dismissed his appeal, the sole legatee under the will was permitted to reinstate the appeal, and she was substituted for the named executor in the
While some of the decisions from other jurisdictions relied upon by respondent might seem to support their position in the instant case,
From what has been said it follows that the final disposition of this case depends upon the determination of a question of fact, namely: Whether the claimant, although unsuccessful, defended the will in “good faith and with just cause.” It was not a proper case to be decided on a motion for summary judgment. If there should be a finding on the facts in favor of the claimant, he would be entitled to an allowance out of the estate only in such an amount as the court “shall deem just and proper.”
We do not wish to be understood as indicating that claimant is entitled to an allowance. There are circumstances shown by the record which tend to cast doubt on the question of whether he proceeded in “good faith and with just cause.” Moreover, it appears from the face of the claim itself that it is grossly excessive and unreasonable. We do not find fault with the result reached by the lower court but rather with the method used in reaching that result.
Reversed and remanded for further proceedings consistent with this opinion.
In re Estate of Healy, 243 Minn. 383, 68 N. W. (2d) 401.
See Kelly v. Kennedy, 133 Minn. 278, 158 N. W. 395, L. R. A. 1917A, 448, and Minnesota Loan & Trust Co. v. Pettit, 144 Minn. 244, 175 N. W. 540, 7 A. L. R. 1496, where this court held that since there was no duty on a named executor to secure probate of the will, therefore, even though he acted in good faith, he was not entitled to his expenses incurred in an unsuccessful effort to sustain the will.
Lamoreaux v. Higgins, 171 Minn. 423, 425, 214 N. W. 267, 268; 7 Dunnell, Dig. (3 ed.) § 3564c.
Prior to the revision of the probate code in 1935 the statute read “whenever a person named as executor” but that was changed by L. 1935, c. 72, § 118, to read “Whenever any person named as executor.” (Italics supplied.) It is entirely possible that by the use of this broader language the legislature intended to make certain that the right to an allowance under M. S. A. 525.49 would be denied only in those cases where the proceedings were not taken in good faith or with just cause.
See Williams v. Hankins, 79 Colo. 237, 240, 245 P. 483, 484, where the court stated: “He [the executor] acted in good faith if he honestly believed the will valid. * * * Good faith is an ultimate fact. It means honest belief.” See, also, Annotation, 40 A. L. R. (2d) 1407, 1427.
In re Estate of Healy, 243 Minn. 383, 68 N. W. (2d) 401.
Rule 56.03, Rules of Civil Procedure.
See, Lassiter v. Travis, 98 Tenn. 330, 39 S. W. 226; In re Will of Jewe, 201 Iowa 1154, 208 N. W. 723; Huff v. Huff, 132 Tex. 540, 124 S. W. (2d) 327; In re Sheperd’s Estate, 152 Ore. 15, 43, 41 P. (2d) 444, 49 P. (2d) 448, 454; Williams v. Hankins, 79 Colo. 237, 245 P. 483; Matter of Everman, 279 App. Div. 843, 109 N. Y. S. (2d) 669; 33 C. J. S., Executors and Administrators, §§ 225a, 226d.
See Sviggum v. Phillips, 217 Minn. 586, 15 N. W. (2d) 109, where we held that whether landlord proceeded in good faith under OPA rent regulation to recover possession of premises from tenant for use as a personal dwelling presented a question of fact for the jury.
See, Daly v. Moran, 256 Ky. 280, 75 S. W. (2d) 1041; In re Estate of Charles, 123 Neb. 630, 243 N. W. 847 (it should be noted, however, that in this case the court referred to the fact that the executor persisted in seeking to establish the will after he had knowledge of its revocation).
Some of the cases relied upon by the respondent can also be distinguished on the ground that they were premised on the reasoning that the executor as such has no part to play in contests between heirs, devisees, or legatees, disputing the distribution of the estate (Estate of Pryor, 51 Cal. App. [2d] 735, 125 P. [2d] 511; Weir v. Weir, 28 Ohio Cir. Ct. 199), or that the executor had exercised undue influence over the testator in the procuring of the will (In re Estate of Jenkins, 245 Iowa 939, 65 N. W. [2d] 92).
See 2 Page, Wills, § 706, p. 369, stating: “In jurisdictions in which attorney’s fees may be awarded to an executor who is not interested in the will, there is a division of authority as to whether the fact that the executor is also a beneficiary should affect his right to attorney’s fees.”