Hazard v. Engs

• Decision Date: 04 October 1882
• Parties: DANIEL L. HAZARD et al. v. SAMUEL ENGS et al.
• Court: Rhode Island Supreme Court

14 R.I. 5

DANIEL L. HAZARD et al. v. SAMUEL ENGS et al.

Supreme Court of Rhode Island.

October 4, 1882

On appeal from the decree of a Probate Court proving a will, the executor named in the will may, if acting in good faith prosecute the probate in the appellate court at the expense of the estate.

The reasonable expenses incurred by such executor in so doing are " necessary expenses incident to administration."

BILL IN EQUITY for an injunction.

Hazard Stevens, for complainants.

William P. Sheffield, for respondents.

DURFEE C. J.

This is a suit in equity brought by the heirs at law of the late John Alfred Hazard, against Samuel Engs and Benjamin Hazard, named as executors in a paper, purporting to be the last will and testament of the said John Alfred, and against the Newport Hospital, named as residuary devisee or legatee therein. The bill sets forth that John Alfred Hazard died May 26, 1880 leaving property worth $300,000, of which $71,000 was personalty, and the rest real estate, and no debts. The bill also sets forth that the defendant Benjamin Hazard immediately after the death of John Alfred, presented the paper purporting to be his will for probate to the Probate Court of the city of Newport; that the paper was ad mitted to probate July 12, 1880, and the defendants Engs and Hazard appointed executors; that they have taken possession of the personalty and collected some of the rents of the real estate; that an appeal, taken by the complainants from the decree admitting the paper to probate, is still pending in this court, having been twice tried to a jury without reaching judgment; that the defendants Engs and Hazard, as executors, are using the funds in their hands belonging to the estate to defray the expenses of litigating the appeal, thus employing the property of the complainants to defeat their rights, having already, as alleged on information, expended $10,000, and that, although they have acted as executors for over two years, and have collected the rents of some of the real estate, they have never either given bond or rendered an account. The bill prays that the defendants Engs and Hazard may be enjoined from expending the estate in further contesting the appeal. The defendant Engs, in his answer, denies the allegation that he has expended $10,000, or any sum beyond what was reasonable and proper, and demurs to the rest of the bill. The defendant Hazard, in his separate answer, avers that he has only consented to the expenditure of about $300, and that if more has been expended, it has been without his knowledge or consent. The case is tried on bill, answers, and demurrers.

The question presented is, whether on an appeal from a decree admitting a will to probate, the persons nominated as executors are entitled, acting in good faith, to prosecute the probate in the appellate court at the expense of the estate. The Digest of 1798 made it the duty of any executor named in a will, knowing that he had been so named, to cause the will, within thirty days after the decease of the testator, " to be proved and recorded in the clerk of probate's office of the same town where the deceased person last dwelt," or to present the will and declare his refusal in writing. This provision remained substantially unaltered down to 1882, when the Public Statutes went into effect. The practice under the provision has been for the executor named to take upon himself the probate of the will both in the lower and the appellate court. In the Public Statutes, however, there is a change of language, and now the provision is, not that the executor shall cause the will to be proved and recorded, but that he shall " lodge such will for probate and record." It is difficult to imagine why the ancient language was changed, unless there was a purpose to change the law itself and the practice under it; but it is equally difficult to suppose, if the purpose was to change so materially the law and the practice under it, that the purpose would not have been more clearly demonstrated. Upon the whole we are inclined to think that the change was intended to be merely verbal. It was probably observed that the language of the old statutes, taken literally, made it the duty of the person nominated as executor to cause the will to be proved and recorded within thirty days. Whereas the most he could do was to present the will and the evidence in support of it, which alone might take over thirty days, leaving it to the courts to decide whether it should be " proved and recorded; " and therefore, though no harm had ever come of the old form of speech, it was probably deemed best to change it, so that literally taken it could not be held to mean more than it had always been construed to mean. Unfortunately, the new...