153 Ga. 827 | Ga. | 1922
On the 20th day of August, 1911, James G. Young, of Troup County, died, leaving a will, in which his property was distributed, under the terms of said will, among several different persons. J. Wid Freeman was named in the will as the executor. On August 22, J. Wid Freeman filed an application to probate the will in solemn form. Caveat was filed by the heirs, raising the issue of devisavit vel non. Thereafter Freeman was appointed temporary administrator, and qualified as such, executing the bond required by the ordinary. As temporary administrator he took charge of the estate of the decedent, consisting
“I find in this case that Mr. Freeman, acting by virtue of the authority given him by the will of Mr. Young naming him as executor of his will, presented the will for probate, and that a caveat was filed to the will, and pending the decision and termination of this issue and growing out of this litigation certain costs were incurred for attorney’s fees and court costs; that Mr. Freeman as propounder of the will would be entitled to be reimbursed for such expenses, provided they are reasonable and just charges, and provided further that he acted in good faith and to the best interest of the estate. This would be true even though on a final hearing the will was set aside.
“ Especially is this true when Mr. Freeman appeared and offered to probate the will in common form, and the ordinary refused this request but instead appointed him temporary administrator, and also when it further appears that the caveat called upon the executor to prove the will in solemn form. Mr. Freeman showed his willingness and desire to prove the will in common form when he appeared before the ordinary in person and made a verbal request to probate the will in common form, and the ordinary told him that it would be unnecessary for him to make a formal written application to do this, as he would not allow this to be done.”
The first paragraph of the above is excepted to on the ground that it is contrary to law, and because the person named.as executor and who is also a beneficiary under the will could not employ counsel, attempt to probate, the will over the caveat by the children of the deceased, lose the case in the trial court, then liti
As to the attorney’s fees in-the case, the case is not brought by the facts -within the rule that an executor or administrator may employ counsel and have reasonable attorney’s fees allowed out of the estate. Had the will been probated, a different situation would have been presented. Questions similar to that presented here have been discussed in decisions of courts of other States. In the case of Dodd v. Anderson, 197 N. Y. 466 (90 N. E. 1137, 27 L. R. A. (N. S.) 336, 18 Ann. Gas. 738), it was held that the administrator of a decedent’s estate is not liable in an action at law for the amount expended by one nominated as executor in an instrument
In the case of Kelly v. Davis, 37 Miss. 76, the Supreme Court of Mississippi took this view of a question similar to the one we are now dealing with; and it was there said: “ The parties contestant are the executor and legatees, seeking to establish the will, on the one side, and the heirs at law and distributees, on the other; the affirmation of the issue being upon the former. To allow the party failing to maintain his suit his costs and expenses against the adverse party, who was without fault, and had merely defended his just right against an unjust and unlawful claim asserted against it, would be unknown to judicial procedure. The result of the litigation establishes that ho has but defended his lawful right against an unjust claim asserted against it; and yet, under the rule contended for, he is compelled to pay not only his own expenses for counsel fees and otherwise, but those of his adversary incurred in an effort to deprive him of his rights. Such a rule would be most unjust and oppressive, and the effect of it would be that frequentl}’’, though the heir or distributee. succeeds in establishing his right, he would receiveTittle or no benefit from the estate which belongs to him, because it would be heavily charged, if not entirely absorbed, by charges incurred by the executor in endeavoring to deprive him of it entirely.” Similar rulings have been made by the courts of last resort' of other States. See the cases of Moyer v. Swygart, 125 Ill. 262 (17 N. E. 450); Brown v. Eggleston, 53 Conn. 110 (2 Atl. 321); Yerkes’s App., 99 Pa. 401; Brown v. Vinyard, Bail Eq. 460; Fry v. Fry, 96 Mo. App. 208, (70 S. W. 172). Other cases to the same effect might be cited. In some of the States courts of last resort have seemingly laid down a different rule, but the sounder view seems to be announced by the authorities quoted and cited above, and these seem to be in accord with our statute properly construed. Consequently the court erred in overruling the exception to the finding of law upon the subject of the allowance of attorney’s fees to counsel for defendant in error, incurred by the latter in the proceedings to probate the will.
Judgment reversed on the main hill of exceptions; cross-hill dismissed.