138 Tenn. 255 | Tenn. | 1917
delivered the opinion of the Court.
This suit was brought by certain attorneys to recover their fees for services rendered in the contest of the will of J. T. M. Haire, deceased. There is no question made as to the amount of the fees claimed, nor as to the fact of proper services having been rendered by the attorneys. The question presented is whether the attorneys for the successful contestants of a will are entitled to payment of their fees out of the estate as part of the expenses of adminstration.
A brief statement of the ease is that Mr. Haire died in July, 1912, leaving two paper writings purporting to be his last, will and testament. One of them named the widow as executrix and the sole beneficiary of the estate of the testator. The other one gave certain properties therein mentioned to the widow for life and remainder to the heirs at law of the testator. The widow propounded the first will, and a contest thereof was instituted by the heirs at law, among other things, upon the ground that the will was procured by fraud and undue influence of the widow. These questions were submitted to the court and jury, who found against the will, and upon appeal the case was affirmed by the
Expenses of this kind are not debts of the decedent. They are expenses incurred in the adminstration of the estate. This is true both as to compensation of executors, administrators, and their attorneys, and other persons who render services for the benefit of the estate. 18 Cyc., 443, 445. So it has been held that an executor who propounds a will for probate, is entitled to his costs and attorneys’ fees whether the will is set up or not. Lassiter v. Travis, 98 Tenn., 330, 39 S. W., 226; Douglass v. Baber, 15 Lea (83 Tenn.), 665; Smith v. Harrison, 49 Tenn. (2 Heisk.), 230; Bowden v. Higgs, 77 Tenn. (9 Lea.), 346; Cornwell v. Cornwell, 30 Tenn. (11 Humph.), 487; and in Smith v. Haire, supra, the.element of good faith upon the part of the executor in propounding the will for probate was super-added.
The defendant as executrix propounded the fraudulent will by the terms of which she would have obtained the entire estate of the testator.. If the contest had not been instituted, the real will of the testator would have been defeated, and his estate would have passed to
In reply to this it is said that the widow by dissenting from the true will was entitled to homestead and dower and year’s support. Hence the contest of the fraudulent will pot only deprived her of the entire estate of the testator, hut, if compensation for counsel fees is charged against the estate, it will lessen her rights as dissenting widow. For these reasons, it is said that the services of counsel have not inured to the benefit of the estate, at least in so far as Mrs. Haire is concerned. But this does not meet the equities of the case, nor does it change the fact that the services rendered by counsel in contesting the will prevented the entire estate from being'diverted from the wishes of the testator, and brought it in under the true will. The widow was defeated in her fraudulent attempt to obtain the' whole estate when at most she was only entitled to homestead, dower, and year’s support. This is not an injury of which she can complain. It is an, injury in the sense that she was prevented-frbm obtaining that to which she was not entitled, hut such an in
There is no question of the bona fides of the contestants, and there could not be. The mala fides of the widow is established by the previous adjudication of this court. The element of good faith is always pertinent in determining the right of a claimant to have the expenditure made in behalf of a decedent’s estate charged as expenses to be paid out of the entire estate. Smith v. Haire, supra. This is a just rule which can injure no one; and its corollary to the effect that an executor, acting in bad faith in propounding a fraudulent will, cannot resist the payment of counsel fees out of the estate incurred in contesting such a will, appears to us to be equally just. Affirmed.