98 Tenn. 330 | Tenn. | 1897
Mrs. Tassey died, leaving two children — now Mrs. Lassiter and Mrs. Travis. After her death a paper writing, purporting to be her last
We are unable to concur in this conclusion of law ; for, to our minds, good faith, rather than pecuniary
Being named as executrix in what seemed to be a valid will, it was the legal duty of Mrs. Lassiter to produce the instrument, if in her possession ; and, after having done that, there rested upon her the further legal duty of having the supposed will probated, or of renouncing the executorship (Pritchard on Wills & Adm’n, Sec. 30) ; and these duties were in no way affected by the fact that the will benefited her alone, in the sense that it gave her moré and her sister less of their mother’s estate than they would receive, respectively, in the absence of the will and as heirs at law. Pecuniary interest under a will is no disqualification for the office of executor, nor does it diminish or enlarge the duties of the person nominated to fill the office.
The complainant could undoubtedly have waived her advantage and avoided the will altogether by agreement with the defendant, they being the only persons interested in the subject matter; but she chose not to do that, and having made that choice, as she had the right to do, her duties with respect to the supposed will were the same, in legal contemplation, as they would have been if the defendant, instead of herself, had been given the larger share.
Having elected to have the will probated in common form, as is usual, and to assume its trusts, Mrs. Lassiter was a £ ‘ formal and necessary party ’ ’ to the contest proceedings instituted by Mrs. Travis
In propounding the will and seeking to establish it, Mrs. Lassiter was, in name and in law, acting as the representative of the supposed testatrix, and not in her own name or «for herself, in a legal sense, though her action, if successful, would have resulted in her personal gain ultimately.
In Bennett v. Bradford this Court held that a nominated executor, though a beneficiary under the will, was under legal obligation to propound the will and take all proper steps, including the employment of counsel, to resist the contest and sustain the will, and that the estate, and not the interested executor, was liable for all necessary expenses incurred by him in the faithful discharge of those duties. 1 Cold., 471. It is true the will was sustained in that case, but no importance was attached to that fact.
Here the fact that the executor had no pecuniary interest in the result of the contest is mentioned, yet it is not a reason given for the decision. The controlling points are that the executor was, in law, the representative of the estate to be charged, and that he had acted in good faith.
In the later case of Douglass v. Baber, the matter of interest or no interest on the part of the executor, and the question of success or defeat in the contest, seems to have been dropped out of view and given no place in the ultimate adjudication. The language of the Court was as follows: “The
It is worthy of especial remark that all of these cases gave large effect to the fact that the nominated executor is under legal obligation to propound and support the will, and that, in doing this, he represents the estate of the alleged testator, and not himself.
In view of this obligation, and this representation, good faith is indispensable, and when it is exercised the executor is entitled to full protection, whatever the result of the contest and without reference to any pecuniary interest he may have had in it. The result and his interest are unimportant questions when good faith has been employed.
Williams, referring to the question of interest, says: “A legatee, performing the duty of an executor in proving the will, is entitled to his costs out of the estate” (1 Williams’ Exrs., *330); and Redfield, referring to the result of contest, says: “But even in cases of appeal from decree of probate of will, and granting letters testamentary, and a final decree against the will, the executor will be allowed the expenses of the litigation Tyona fide incurred in attempting to support the will.” 2 Red. Wills, T12.
Having acted in good faith and pursued legal methods as the nominated executor, the complainant is entitled to the relief she now seeks, notwithstanding the fact that she alone was to be pecuniarily benefited by the establishment of the supposed will.
Let the decree of the Court of Chancery Appeals be reversed and that of the Chancellor affirmed.