90 Ky. 544 | Ky. Ct. App. | 1890
delivered the opinion of the court.
Bannister Taylor died in 1876, leaving a paper, pur-. porting to be liis will, executed • in 1844. It devised liis estate to liis widow,-the appellant, E. W. Taylor, for life, .or during lier widowhood; disinherited his •daughter, the appellee, Martha Minor, who had married J. C. Minor; provided that his widow, as his other children married or arrived at age, should give to each of them one thousand dollars as an advancement; but if any one of them married against her will, such child should have no part of his estate, and that upon the death of his widow or her remarriage his estate should, save in the event above named, pass to his children, save Martha; but if they died without children,, it was to pass to a certáin educational institution, which was named in the will. It nominated two persons as executors, but they never qualified. He had but two children beside Martha, one of whom died before he did, and the other after, both leaving children.
Whether, therefore, the paper purporting to be his will was upheld or not, his estate passed to the same
During the pendency of the litigation the appellant,. E. W. Taylor, was appointed curatrix of the estate, and when it ended she qualified as administratrix. As such representative she made a settlement in the county court of her accounts as curatrix, and while that settlement does not appear as a part of this record, yet she appears to have been credited in it with extraordinary costs or expenses incurred by her in the will litigation, such as 'moneys paid to an expert witness and lawyers’ fees.
Minor and wife obtained a judgment in the will' litigation for their ordinary cost, and collected it. Shortly after the ending of that litigation Minor and wife brought this action against the widow and other heirs, seeking to surcharge and correct the settlement made by Mrs. Taylor in the county court, and for a settlement and division of the estate. In it they also claimed reimbursement out of the estate for the extraordinary expenses they had incurred in the previous litigation. This included the fees of their attorneys; money paid to a distinguished physician as an expert witness; the cost of a continuance by them in that suit, and for which a judgment had been rendered
Upon the other hand, the appellant, Mrs. Taylor, while she denied the right of Minor and wife to recover these claims out of the general estate, claimed that she was entitled out of it to the extraordinary costs she had incurred in the will litigation, such as her attorneys’ fees and money paid by her to another expert witness. The case was referred to a commissioner, who reported in favor of allowing all these claims, and the court, by the judgments now complained of, allowed them all out of the estate, and both sides are now complaining, the one by an appeal and the other by a cross appeal.
The court also allowed an attorney’s fee to each side in this case, to be paid out of the estate.
Yarious other grounds of complaint are presented by each side, but those above named are the ones mainly urged, and the most of the others will go unnoticed as unnecessary for our consideration.
It is claimed upon the side of the appellees that section 15, chapter 23, of the General Statutes, page 311, authorizes the allowance to them of their extraordinary expenses incurred in the will litigation. It provides: “In actions for the settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, if it shall be made to appear that one or more of the legatees, devisees, distributees or parties in interest have prosecuted for the benefit of others interested with
In our opinion, however, this provision does not embrace a case like this one. Where, however, one person has prosecuted an action at extra expense and trouble, and the recovery inures equally to the benefit of others, the chancellor may, in the exercise of his power to compel parties to do equity, require them, as a condition of sharing in it, to contribute their proper proportion of the expense, and may order it paid out of the common fund.
It is manifest, however, that such a case is not now presented. The will litigation was for the benefit of Mrs. Minor. Her success diminished the portions of the devisees named in the will, and their portions as heirs should not, therefore, be diminished by the payment of these extra expenses out of the estate, which were incurred for the benefit of Mrs. Minor alone.
Upon the other hand, the appellant, Mrs. Taylor, was merely a devisee and the curatrix. In the latter capacity it was her duty to collect and preserve the estate merely. She had no power as such to employ counsel in the attempt to set up a will and charge the estate with the expense. (Gen. Stats., chapter 39, art. 1, sec. 21.1
The allowance of a fee to the attorney of the appellees, Minor and wife, in this suit was proper. Mrs. Minor, by the breaking of the so-called will, had become a distributee of the estate. She, therefore, had a right to sue for its settlement, and in doing so to surcharge and correct the settlement which the administratrix had made of her accounts as curatrix. As it credited her by the extraordinary expenses incurred by her in the will litigation, it was erroneous; and this being so, we fail to see upon what ground an allowance should be made to Mrs. Taylor out of the estate to pay the fee of her attorney in this action. The distributee was not in fault in seeking to correct the settlement, and this expense upon the part of Mrs. Taylor has been incurred in endeavoring to uphold it and protect her own individual interest. While we doubt not she has acted throughout in good faith, yet this does not permit us to stretch the
This appeal is not so taken as to parties that we can consider .any question of overpayment to any of the heirs. Mrs. Taylor was given a credit in her county court settlement for insolvent debts of the estate: and in making up the account in this suit she appears to have been charged only with the balance found owing upon that settlement. She was properly credited as to the Purdem debt, owing to the estate, as the testimony shows that the obligors were, until the time of their failure, generally regarded as solvent.
It does not clearly appear from this record whether Mrs. Taylor has or has not been credited by all the taxes paid by her for the estate. The chancellor will, upon the return of the cause, re-examine the case, and in the future judgment allow any not heretofore credited. As curatrix she could not tell when the will litigation would end. She could not know when •she would be called upon to settle her accounts. She should, of course, be made to account, however, for any and all interest upon the funds of the estate which she in fact collected. She has been charged interest upon the money from two years after her qualification as curatrix. It appears that for a time a portion of the estate was in bank to her credit, and ready for distribution if the litigation had come to an end, and it had been ordered. If, during this period, she received no interest upon this portion of the estate, and she does not appear to have done so, it would not be equitable to charge her with it, and in the com
We perceive no errors wbicb we can consider as between tbe parties to tbis appeal, save as above indicated. Upon a return of tbe canse tbe lower court will correct its proceedings as herein indicated, calling to its aid its commissioner, if it sees proper to do so, and tbe judgments appealed from are .reversed upon botb tbe main and cross appeals, and cause remanded, for further proceedings consistent with tbis opinion.