Brosnan v. Fox

• Decision Date: 06 November 1922
• Docket Number: 3783.
• Citation: 284 F. 923
• Parties: BROSNAN v. FOX.
• Court: U.S. Court of Appeals — District of Columbia Circuit

284 F. 923

BROSNAN v. FOX.

No. 3783.

United States Court of Appeals, District of Columbia.

November 6, 1922

Submitted October 3, 1922.

Appeal from the Supreme Court of the District of Columbia.

W. G Gardiner, of Washington, D.C., for appellant.

W. G Johnson, of Washington, D.C., for appellee.

VAN ORSDEL, Associate Justice.

This appeal is from so much of an order of the Supreme Court of the District of Columbia, sitting in probate, as allowed a commission for services to appellee, Albert L. Fox, as executor under the last will and testament of one Timothy Brosnan.

It appears that Timothy Brosnan died on May 2, 1919, leaving two wills, one dated May 2, 1914, and the other July 29, 1918. In the last will, appellee, Fox, was named as executor. On June 2, 1919, the executor filed a petition for the probate of the will and for letters testamentary. It appears from the will that the decedent left a widow, the appellant here, and five nieces and a nephew, children of a deceased brother, and two nieces, children of a deceased sister, as his only next of kin.

On August 12th following, no objections being made by any of the parties, the court entered a judgment admitting the will to probate 'as a will of real and personal property,' and letters testamentary were granted to appellee as executor. The executor reduced all the property to possession, and was proceeding with the administration of the estate, when on November 6, 1919, appellant, the widow, filed a caveat to the will, alleging mental incapacity, undue influence, and fraud in the procurement of the will. Issues for trial by jury were framed by the court, and the trial resulted in a verdict finding that the testator was of unsound mind at the date of the execution of the will. The court entered a judgment on the verdict, vacating the judgment admitting the will to probate, and adjudging the paper writing not to be the last will of Timothy Brosnan. From this judgment an appeal was taken to this court, which appeal is still undetermined.

On August 15, 1921, in compliance with notice from the court the executor filed a full account of receipts and disbursements from the time of his appointment. In this report the executor claimed commissions for his services as executor up to the time of filing the report. Appellant filed objections to the allowance of commissions for services, and similar objections were filed by four of the nieces.

On December 27, 1921, the court passed an order providing, among other things, as follows:

'First, that the costs of the proceedings on the caveat to said will be charged against said estate and paid by the said Albert F. Fox out of the funds of the estate still held by him; second, that the said Albert F. Fox be and he is here allowed, for his services rendered as executor, commissions at the rate of 4 per centum upon the personal estate, and 4 per centum on $12,362.15, the net amount of rents collected from real estate, after deducting the sum of $476.55, the amount of commissions on said rents paid W. H. McGrann.'

The order provides for further payment by the executor of $1,000 'in full of counsel fees for services in defending the contest of the said alleged will.'

From so much of the order as relates to the commissions allowed the executor, upon the personal estate and rents collected from real estate, this appeal was prosecuted.

It will be observed that the validity of the will is still in course of adjudication. The will was duly probated and letters testamentary issued before the caveat was filed. The status of an executor, whether the caveat is filed before or after probate of the will, was defined in Hutchins v. Hutchins, 48 App.D.C. 286, 291, as follows:

'An executor derives his appointment from the testator, which appointment is approved and letters testamentary are issued as an incident of the probate proceedings. Hence the contention that he is not an executor until after probate is a fictitious assumption. He is an executor for the duties to be performed before probate to exactly the same extent that he is an executor for the duties to be performed after probate. The same grounds would have existed for assailing the validity of the present will after probate as before. The court found that it had been executed with all the formalities required by law to admit it to probate. Yet, had it been probated, it would still have contained the fatal defect which ultimately determined its invalidity; but, until that defect was discovered and adjudicated, the relation between the executors and the testator remained at all times the same.'

Appellant has not been released by the court, nor has he applied for relief from the office of executor. He therefore is...