Butt v. Murden

• Decision Date: 13 March 1930
• Citation: 154 Va. 10
• Court: Virginia Supreme Court
• Parties: KENNETH P. BUTT, A. H. FOREMAN, N. G. WILSON AND JAMES G. MARTIN, ADMINISTRATORS OF FREDERICK M. HALSTEAD, DECEASED, ET ALS, v. TULLEY D. MURDEN AND W. TILDEN SMITH.

Page 10

154 Va. 10

KENNETH P. BUTT, A. H. FOREMAN, N. G. WILSON AND JAMES G. MARTIN, ADMINISTRATORS OF FREDERICK M. HALSTEAD, DECEASED, ET ALS, v. TULLEY D. MURDEN AND W. TILDEN SMITH.

Supreme Court of Virginia, Richmond.

March 13, 1930.

Absent, Hudgins, Gregory and Browning, JJ.

1. EXECUTORS AND ADMINISTRATORS — Duty to Defend Will — Right of Executor to Recover Expenses of Defense. — The weight of authority supports the rule that after a will has been duly admitted to probate it is the duty of the executor named therein to defend suits brought to revoke such probate or to test the validity of the will, and if he acts in good faith he is entitled to receive from the estate his necessary expenditures in defending such attack.

2. EXECUTORS AND ADMINISTRATORS — Duty to Defend Will — Right of Executor to Recover Expenses of Defense. — While if the executor acts in good faith after probate in defending suits brought to revoke probate or to test the validity of the will, he is generally entitled to reasonable allowances for his expenses incurred by such litigation, yet in most contests it is merely a question between persons who take the estate if the will is established and those who will take it under the law of descents and distributions if not established. In such cases the executor should leave these interested parties to conduct the litigation at their own expense and to abide its results without imposing substantial charges upon the estate represented by the executor.

3. EXECUTORS AND ADMINISTRATORS — Duty of Executors to Defend Will — Will Peculiar and Unwise — Case at Bar. — The fact that a will was peculiar and doubtless unwise did not relieve the executors of their duty to represent the testator when the validity of the will was questioned, charged as they were by the will with carrying his purposes into effect in so far as it might be legally possible to do so. Where it could not be foretold whether the will was valid or invalid until the question was decided by the Supreme Court of Appeals, the executors were justified in defending an attack on the probate of the will, especially where, as in the instant case, had the executors not defended the contest it would have gone by default, for there was no one else to incur the expense of doing so.

4. EXECUTORS AND ADMINISTRATORS — Suit to Surcharge and Falsify the Accounts of Executors — Attorney's Fees and Expenses in Defending the Will After Probate Against an Attack on the Testamentary Capacity of the Testator — Personal Liability of the Executors — Case at Bar. — The instant case was a suit to surcharge and falsify the accounts of executors under a will which after probate was declared invalid for lack of testamentary capacity. The items of expense in the executors' accounts which were attacked were incurred by the executors in defending the validity of the will. It was insisted that these expenses were illegally allowed, and that the executors should be held personally responsible therefor; that executors under a will which is ultimately declared void cannot pay necessary legal expenses incurred in an unsuccessful effort to maintain the will, even though the will has once been admitted to probate. The case was peculiar in that the estate was a large one, given mostly to charity, and there were no living persons who had any interest under the will and no persons except the executors were charged with any duty whatever as to it.

Held: That under the peculiar circumstances of the case, it could not be said that the trial court abused its discretion in making the allowances conceded to be reasonable and necessary to make a proper defense to the attack upon the testamentary capacity of the testator.

Appeal from a decree of the Circuit Court of the city of Norfolk. Decree for defendants. Complainants appeal.

The opinion states the case.

James G. Martin and Pender, Way & Foreman, for the appellants.

N. T. Green, for the appellees.

PRENTIS, C.J., delivered the opinion of the court.

For an understanding of the sole issue presented in this case reference should be made to Smith and Murden, Executors Ottley, 144 Va. 406, 132 S.E. 512, in which the will of Frederick M. Halstead was held null and void because of his mental incapacity. Smith and Murden (appellees here) were named as executors in the Halstead will, and it was admitted to probate by the clerk of the circuit court. From this order of the clerk an appeal was taken by the heirs at law and distributees to the Circuit Court of Norfolk county. The single issue raised (mental capacity) was submitted to a jury. Their finding was that the paper was not the true last will and testament of Halstead, and the court entered judgment thereupon. An appeal to this court was allowed and the judgment was affirmed. Thereafter the administrators of Frederick M. Halstead qualified and the executors under the void will settled their accounts before a commissioner as required by statute, Code, chapter 221. The administrators filed exceptions to these accounts, raising the precise question which is raised by this appeal — that is, they denied the validity of the allowances made to the executors for attorneys' fees and other expenses incurred by them in their effort to maintain the Halstead will. The trial court overruled those exceptions and a writ of error was allowed upon the petition of the administrators. It was thereupon held by the Special Court of Appeals (Butt Murden, 149 Va. 518, 140 S.E. 663) that the writ of error should be dismissed as having been improvidently awarded, without prejudice to any persons interested to bring a suit to surcharge and falsify the accounts.

Then this bill was filed to surcharge and falsify the accounts of the executors to the amount of $17,396.68, covering items alleged to have been illegally paid to the three attorneys for the executors for their legal services in the original contest over the will, and expenses incidental to that contest, including stenographic services, fees to expert witnesses, printing in the appellate court and similar items. The record was voluminous, the witnesses many, the contest bitter and prolonged. It is insisted that all of these expenses were illegally allowed, and that the executors should be held personally responsible therefor. It is contended that executors under a will which is ultimately declared void cannot pay necessary legal expenses incurred in an unsuccessful effort to maintain the will of which they are executors, even after it has once been admitted to probate, and that the usual rule as to costs between parties should be applied. While it is conceded that there is conflict in the authorities in contested will cases, it is insisted that the question is set at rest in Virginia in favor of the heirs at law (appellants) by the case of McCormick Elsea, 107 Va. 472, 59 S.E. 411, 412.

In that case there was a suit in equity, the object of which was to establish a will alleged to have been lost, mislaid or abstracted. The contention of the plaintiffs was that under that lost will the whole of the estate had been devised and bequeathed to them, and this claim was successfully resisted by eight of the...