88 So. 914 | La. | 1921
The de cujus left a mystic or secret testament. His widow employed the opponent, J. R. Pavy, attorney at law, to cause this will to be probated. On December 21st, Mr. Pavy presented a petition to that ' effect, and filed the will with it, and obtained an order reading:
“Let the sealed envelope herewith filed, purporting to contain the last will and testament of the deceased, be produced in open court at Yille Platte, La., on Monday morning, December 24, 1917, at 10 o’clock a. m., in order that the same may be opened, and that the last will and testament of the deceased may be proved before me on said date.”
In Succession of Filhiol, 123 La. 497, 49 South. 138, the syllabus reads in part as follows:
“It is ordinarily the duty of a person named as testamentary executor to offer the will impróbate, to defend it from attack, and to endeavor to have it executed, and, as that duty results from the act of the testator, the expense, such as fees of counsel'and costs of court, incurred in its discharge, should be borne by the testator’s succession.”
If the law expenses incurred in connection with the probate of null walls were made to fall upon the persons seeking to have the wills probated ajid executed, people would become chary of presenting wills for probate and execution.
In Girard v. Rabineau, 18 La. Ann. 603, where a direct action was brought against the legatee, -who was also testamentary executor, to annul the will, the court differentiated the case from one where the suit to annul is against the executor, and held the succession not liable for the services rendered by the attorney of the executor after the filing of the suit in nullity, but held the succession liable for those rendered previously. How far that decision, in not casting the entire expense upon the succession, can be reconciled with many others where successions w-ere held liable for the expenses incurred by executors in seeking to maintain the validity of null walls is a question needless to be considered. Suffice it to say that in the case at bar the expenses in question w^ere incurred before any opposition had been filed. Mr. Pavy would not have been justl
The judgment of the lower court was in favor of plaintiff.
Affirmed.