Mumper's Appeal, 3 Watts & Serg. 441

The opinion of the Court was delivered by Kennedy, J. There is no doubt but all the ordinary expenses of administering the estate of the testator by the executor, according to the directions of the will, ought to be paid out of the estate.

But it does not appear to me that the $600 claimed by the executor, and allowed him by the Orphans’ Court, as a credit in his administration account of the estate, by way of compensation to counsel for their professional services rendered at his request, upon the trial of a feigned issue directed by the Register’s Court, for the purpose of testing the validity of the will, can be considered with any propriety part of the expenses incurred in the administration of the estate.

Generally, I take it, that the ordinary costs and expenses incurred by him in either prosecuting or defending a suit, as executor, for the benefit of the estate, are to be paid out of it. This would seem to be right upon the general principle that a trust estate must bear the expense of its administration.

But suppose, in this case, that the issue joined for the purpose of proving the validity of the will, had been decided against the executor, can it be imagined that he would be entitled to retain out of the estate which had come into his hands, not only the legal costs of the issue for which judgment had been rendered against him, but likewise the $600 paid by him to counsel for their advice and professional services given in order to sustain the will ? As regards the quantum of the estate, it is a matter of indifference whether there be a will or not.

Will or no will, is a question which cannot affect the estate, in this respect, in the slightest degree: but it may be, and generally is a matter of great interest to those who claim as legatees or devisees under the writing purporting to be a will. They are the only persons interested in establishing it as a will.

While on the other hand, the heirs at law, or next of kin to the deceased, who are either excluded by the writing from receiving any portion of the estate, or as much of it as they would be entitled to in case of intestacy, are the persons principally interested in opposing the establishment of the writing as a will. If the person appointed by it as executor, be named also as a legatee or devisee, then as such he may be deeply interested also in establishing it to be the last will of the deceased. But it is clear that creditors and the rest of the world have no interest whatever in the question.

It would therefore seem to be just, as well as equitable, that those who have an immediate and direct interest in the question, should be left to contest and bear all the costs and charges attending it. It ought to be left to them to employ counsel or not, as they please; and consequently to bear the expenses of doing so. If left to those named in the writing as legatees or devisees, to employ counsel, when thought advisable, they can, by agreement among themselyes, apportion the expenses of it according to their respective interests, which would certainly be both equitable and just.

But if it be left to the person or persons named in the writing as executors, who have no other interest in it, to employ and pay counsel out of the estate for their services rendered in establishing the will, it is not only leaving it to persons who have no private interest in the matter to restrain them from being prodigal at the expense of those immediately interested in establishing the writing as a will, but it will, wherever there are residuary legatees or devisees, throw the whole expense upon them, if their interest should be sufficient to meet it; and if not more than sufficient, would leave them nothing.

This, if j ust, would certainly not seem to be equitable. The person named as executor in the writing, when advised that its validity as a will is about to be contested, ought to give notice to those who are named in it as legatees or devisees, so that they may employ counsel, if deemed requisite, or authorize him to do so at their expense.

If they, after being so notified, do not choose to employ counsel or authorize any to be employed on their behalf, they must abide the consequences, and will have no reason to complain if the writing be not established as a will, seeing they were not willing to encounter the expense with which the employment of counsel would have been attended.

The decree of the Orphans’ Court is reversed, as to the allowance of the credit of $600, paid counsel for professional services in the issue to try the validity of the will; that sum is ordered to be stricken out of the account, and that being done, the decree is affirmed as to the residue of the account. Decree reversed.