Dodd v. Anderson

• Decision Date: 15 February 1910
• Parties: DODD v. ANDERSON.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 466

90 N.E. 1137

DODD

v.ANDERSON.

Court of Appeals of New York.

Feb. 15, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William F. Dodd against William J. Anderson, administrator of William H. Anderson, deceased. An order (112 N. Y. Supp. 414) overruling a demurrer to the complaint was affirmed by the Appellate Division (131 App. Div. 224,115 N. Y. Supp. 688), and defendant appeals pursuant to an order (132 App. Div. 896,116 N. Y. Supp. 1134) allowing him to do so. Order of the Appellate Division reversed, and judgment ordered for defendant on the demurrer, with leave to serve an amended complaint.

Henry A. Powell, for appellant.

Robert H. Wilson, for respondent.

WERNER, J.

One William H. Anderson died in February, 1903, leaving a paper purporting to be his last will and testament, which was executed in conformity to the statutes relating to wills, and in which he named as his executors Daniel Anderson, a son, residing in California, and this plaintiff, a nephew, residing in this state. The plaintiff offered this instrument for probate in the proper Surrogate's Court. A contest was made by two of the decedent's children. After a trial, which extended over a number of days, the surrogate reserved the matter for decision, and finally denied probate upon the ground that at the time of the execution of the instrument the decedent was the victim of certain insane delusions which incapacitated him from making a will. The plaintiff in his effort to establish this instrument as the will of the decedent expended the sum of $5,272.90 for counsel fees and disbursements. After the surrogate had rendered his decision denying probate to the instrument thus offered, and after the defendant had been appointed as administrator of the estate of decedent, the plaintiff presented to the administrator a claim for the amount thus expended, and the claim was rejected. Then the plaintiff brought this action against the administrator to recover the amount for which the claim had been presented. The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled at Special Term, and that decision was affirmed by the Appellate Division. §31 App. Div. 224,115 N. Y. Supp. 688. The latter court made an order (132 App. Div. 896,116 N. Y. Supp. 1134) allowing an appeal to this court, and certified for our determination the question: ‘Does the complaint herein state a cause of action?’

As the demurrer admits all the facts set forth in the complaint, it must be assumed that the plaintiff, who had no pecuniary interest in the probate of the instrument, acted in good faith upon the assumption that it was a valid will duly executed by a competent testator who had given his executors explicit instructions to offer it for probate; and it must also be assumed that the expenditures for which the plaintiff seeks to recover were reasonable, taking into account the extent of the decedent's estate and the nature of the contest in the Surrogate's Court. The question certified, when reduced to the concrete terms which cover the issue tendered by the complaint, is whether one who is nominated as an executor in an instrument which, in the court of first instance, is judicially declared to be invalid as a will, can maintain an action at law against the administrator of the decedent to recover the moneys expended in the unsuccessful attempt to procure the probate of the invalid instrument. In the case at bar the Surrogate's Court decided that the paper propounded for probate by the plaintiff was not a valid will. The decree entered upon that decision stands unreversed. The Surrogate's Court, proceeding further upon the theory that the decedent died intestate, appointed an administrator of the estate, who duly qualified and entered upon the performance of his duties. The plaintiff, recognizing the validity of the proceedings in the Surrogate's Court, presented a claim to the administrator for the moneys expended in the unsuccessful effor to prove that the decedent had left a valid will. The administrator rejected the claim. Can the plaintiff now maintain an action at law against the administrator to recover for these expenditures? That is the real question presented by this appeal.

In the quest for direct authority in this court upon the precise issue, the diligence of counsel and our research have proved unfruitful. That the question is not free from difficulty is evident from the very careful and instructive opinion of the learned Appellate Division, with which we deem it our duty to disagree. It is an ancient legal proverb that ‘hard cases make bad law.’ The case at bar aptly illustrates the temptation to overlook or ignore fixed legal principles when they are opposed to persuasive equities. The plaintiff, in the effort to carry out the solemnly expressed wishes of his deceased uncle, decided to accept the office of executor for which he had been named, and not only offered for probate the paper purporting to be a will, but waged an active, prolonged, and expensive contest to establish its validity. All this he did, not for himself, but for others, and in doing it he made large expenditures which will have to be borne by him unless he can be reimbursed out of the estate. While such circumstances quite naturally appeal to the individual sense of justice, they cannot be permitted to influence judicial decision unless they are supported by legal principles.

The theory upon which the complaint has been sustained in the courts below is that a person who is named as executor in a paper purporting to be a will should not be compelled to decide in advance whether he will renounce the trust which has been reposed in him, or accept it at the risk of being charged with the costs and expenses of a contest if the paper is judicially declared to be invalid as a will; that when he acts in good faith and with due diligence his fidelity to duty should not be rewarded with pecuniary loss; that the attempt to probate the will is for the benefit of the estate, being made either upon the express or implied direction of the testator and implying a correlative promise that the estate shall reimburse the executor for all necessary or reasonable expenditures made or obligations incurred in that behalf. The argument is indeed persuasive; but is it sound? That it is not without the support of respectable authority must be conceded. Taylor v. Minor, 90 Ky. 544, 14 S. W. 544;Lassiter v. Travis, 98 Tenn. 330, 39 S. W. 226;Phillips v. Phillips, 81 Ky. 328; Hazard v. Engs, 14 R. I. 5; Woerner's Am. Law of Administration (2d Ed.) § 518; Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590. But these authorities are based upon assumptions which we believe to be fundamentally fallacious. They are necessarily predicated upon the theory that one who in good faith offers for probate a paper purporting to be a will acts for the benefit of the estate, and thus becomes legally entitled to reimbursement for his expenditures necessarily or reasonably incurred. That is a theory, however, which is utterly irreconcilable with certain elementary principles which underlie the laws relating to the administration of decedents' estates. Since these principles are established beyond dispute, they may be most succinctly stated in the form of legal aphorisms. (1) There can be no executor where there is no will. (2) Unless a will is admitted to probate, there can be no letters testamentary. (3) Until letters testamentary or of administration are issued upon the estate of a decedent, there is no legal representative of the estate. (4) Although a person is nominated as executor in a paper purporting to be a will, he is under no legal obligation to accept.

As a will is the only source of an executor's power, and letters testamentary are the only evidence of his authority (Hartnett v. Wandell, 60 N. Y. 346, 19 Am. Rep. 194), it must follow that, when the former is never established and the latter are never issued, he who assumes to act as executor is merely a volunteer who has assumed the risk of having his acts repudiated by the courts of competent jurisdiction. It may be admitted that one who is named as executor and desires to qualify rests under a moral...