Davison v. Sibley

• Decision Date: 14 October 1913
• Citation: 79 S.E. 855,140 Ga. 707
• Parties: DAVISON v. SIBLEY et al. SIBLEY et al. v. DAVISON.
• Court: Georgia Supreme Court

79 S.E. 855

140 Ga. 707

DAVISON v. SIBLEY et al. SIBLEY et al. v. DAVISON.

Supreme Court of Georgia

October 14, 1913

Syllabus by the Court.

An executor under a will probated in common form, who is called upon by heirs at law to probate it in solemn form, is entitled to an allowance of reasonable counsel fees out of the estate for such service, notwithstanding the will may be refused probate.

But if the executor in bad faith and in fraud of the rights of heirs attempts to probate a pretended will, he is not entitled to reimbursement from the estate for expenses incurred in his effort to defraud the heirs.

The good faith of the counsel of the executor is immaterial, as his right to compensation out of the estate is dependent upon the right of the executor to have an allowance from the estate for reasonable and necessary expenses, incurred upon compliance with the demand of the heirs to probate the will in solemn form.

Error from Superior Court, Greene County; B. F. Walker, Judge.

Bill by James Davison, administrator, praying for instructions. From the decree, the administrator brings error, and S. H. Sibley and others file a cross-bill. Reversed on both bills of exception.

Geo. A Merritt and James Davison, both of Greensboro, for plaintiff in error.

Noel P Park, of Greensboro, and Saml. H. Sibley, of Union Point, for defendants in error.

EVANS P.J.

A paper purporting to be the last will and testament of Reuben A Credille was admitted to record as having been proved in common form, and letters testamentary issued to Florence Credille, the person nominated therein as executor. Certain children of Reuben A. Credille filed a proceeding requiring probate of the will in solemn form, and entered their caveat thereto. The executor employed counsel to probate the will per testes, and a long litigation ensued. The result of the first trial was in favor of the caveators, and the verdict was set aside by the Supreme Court. 123 Ga. 673, 51 S.E. 628. A second trial was had, which again resulted in a verdict for the caveators; and this verdict was upheld. 131 Ga. 40, 61 S.E. 1042. Administration was then had upon the estate of Reuben A. Credille, and the administrator brought a bill for direction, praying instructions, among other things, whether he should pay from the assets of the estate the fee of certain attorneys for services rendered to the executor in the litigation over the probate of the will in solemn form. The case was referred to an auditor, who reported, on this issue, that the services rendered by the attorneys were reasonably worth the sum demanded, and that the employment was in behalf of the estate, and not by the executor as an individual, though he was personally interested in the probate of the will. The auditor further reported that the executor had not acted in good faith in pressing the will for probate, and on this account he adjudged that the attorneys could not recover their fees from the estate. Exceptions of law and fact were filed to the auditor's report; and the court sustained the exceptions of law, disregarding as immaterial the exceptions of fact to the auditor's finding that the attorneys acted in good faith in representing the executor, but that the executor acted in bad faith in attempting to probate the will of Reuben A Credille. The ruling of the court was that, independently of the good faith of the attorneys in representing the executor and of the bad faith of the executor in attempting to probate the will, the attorneys were entitled to reasonable compensation for their services in the attempt to probate the will in solemn form, payable from the assets of the estate of Reuben A. Credille. A decree was taken in accordance with this ruling. The administrator excepts to so much of the judgment as sustains the exceptions of law, and the attorneys by cross-bill except to the dismissal of their exceptions of fact as immaterial.

1. We think that the executor's right to be compensated out of the estate for necessary expenses, incurred in an unsuccessful attempt to probate a will in solemn form, at the instance of an heir at law, after the will has been probated in common form, depends upon the duty of the executor in this respect towards the estate he represents. According to the English ecclesiastical law a will was proved in common form on the oath of the executor and without notice, but after it had been proved in common form the executor could be compelled to prove it in solemn form. This is spoken of as calling in the probate. This could...