In re Estate of Berry

• Citation: 134 N.W. 867,154 Iowa 301
• Parties: IN THE MATTER OF THE ESTATE OF THOMAS BERRY
• Decision Date: 05 March 1912
• Court: United States State Supreme Court of Iowa

134 N.W. 867

154 Iowa 301

IN THE MATTER OF THE ESTATE OF THOMAS BERRY

Supreme Court of Iowa, Des Moines

March 5, 1912

Appeal from Sioux District Court.--HON. JOHN F. OLIVER, Judge.

THIS is a proceeding in probate. It is an application on the part of the widow as the proponent of her husband's will for an order on the executor directing him to pay her the reasonable expense incurred by her in obtaining the probate of such will. The application was denied, and she appeals.

Affirmed.

W. C Leonard, Gerrit Klay, and Healy & Healy, for appellant, Mary Berry.

E. C Roach and Van Oosterhout & Hospers, for appellees.

EVANS J. WEAVER, J., dissents.

OPINION

EVANS, J.

The facts of this case are somewhat out of the ordinary. The will of the deceased was admitted to probate after a contest. In such contest the widow appeared as the proponent and the children of the deceased as the contestants. The executor named in the will was John Berry, a son. He was one of the contestants and, as such, opposed the probate. The will was made in this state. With the exception of a few small bequests, the provisions of the will conformed to the statutes of descent in the state of Iowa. That is to say, one-third was devised to the widow, and the remainder was divided equally among testator's children. The occasion for the contest was that the decedent owned real estate in the state of Illinois of a value of $ 80,000 to $ 90,000. Under the statute of Illinois, the widow would take only a life estate in such real estate. The provisions of the will were therefore more advantageous to the widow than to the heirs-at-law. It is the contention of the widow that she should be reimbursed out of the estate for the reasonable expense incurred by her in obtaining the probate of her husband's will. On the other hand, the executor contends that the widow acted upon her own initiative and without any order and sanction of the court, and that she acted solely in her own personal interest, and that she alone obtained the fruits of her success in obtaining the probate of the will.

It is conceded by both parties that, if the widow had been the executrix, the court could properly allow her the reasonable expense incurred by her in pressing the will for probate, and this, too, regardless of results, provided she acted in good faith. This has been the repeated holding of this court. Meeker v. Meeker, 74 Iowa 352, 37 N.W. 773; Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55; Lingle v. Lingle, 121 Iowa 133, 96 N.W. 708.

It is urged by appellee, however, that only the executor, or some person appointed for that purpose by the court, is entitled to incur such expense as a charge upon the estate. We are not prepared to assent fully to this distinction, although the practice suggested by it would be quite appropriate. There is nothing in our statute that designates the executor named in the will as the proponent thereof. We know no rule of law that would forbid any interested person from becoming the proponent of a will if others fail or refuse to act. If a dispute should arise between proponents as to which should control or direct the defense of a contest, a different question would be presented. But where, as in this case, the executor named becomes a contestant and no one appears as a proponent, it is quite beyond objection that the widow of the decedent act as a proponent of her husband's will and, as such, defend it against the contest. In the absence of statutory requirement, we can not think that it was legally necessary that she should obtain an appointment or order from the court in advance in order to improve her standing as a proponent, where no objection was made to her appearing as such. It would be quite inconceivable that the court would refuse its sanction in such a case, and we do not think that the rights of the parties can now be made to depend upon the absence of such formality.

Assuming, therefore, that she was properly before the court as proponent of the will, was the court bound as a matter of law to charge up against the estate the reasonable expense incurred by her by way of attorney's fees in resisting the contest of the will? The appellant relies upon section 3415 of the Code, which provides as follows: "Such further allowances as are just and reasonable may be made by the court for actual, necessary, and extraordinary expense or services."

There is nothing in this provision of the statute which makes the allowance of attorney's fees obligatory upon the court even in favor of an executor. Where attorney's fees have been allowed, it has been upon the theory that they were incurred, not for the personal benefit of the executor, but in the performance of his duty to the estate as a whole. Where the...