In re Estate of Hentges

• Decision Date: 10 February 1910
• Docket Number: 15,911
• Citation: 124 N.W. 929,86 Neb. 75
• Parties: IN RE ESTATE OF FRANK HENTGES. v. PETER HANSEN, EXECUTOR, APPELLEE KATHERINE MCDANIEL ET AL., APPELLANTS,
• Court: Nebraska Supreme Court

124 N.W. 929

86 Neb. 75

IN RE ESTATE OF FRANK HENTGES.

KATHERINE MCDANIEL ET AL., APPELLANTS, v. PETER HANSEN, EXECUTOR, APPELLEE

No. 15,911

Supreme Court of Nebraska

February 10, 1910

APPEAL from the district court for Platte county: GEORGE H. THOMAS JUDGE. Affirmed.

AFFIRMED.

J. H Barry, for appellants.

J. J Sullivan and A. H. Briggs, contra.

OPINION

ROOT, J.

This is an appeal prosecuted by certain legatees of Frank Hentges, deceased, from an order of the district court allowing the executor credit for attorney fees.

There is but little substantial conflict in the evidence, and, in so far as the witnesses disagree, we should solve the doubts in favor of the judgment. It appears that the testator departed this life possessed of property worth about $ 4,000, and survived by eight children and one grandchild. In April, 1906, an instrument purporting to be his last will and testament was presented for probate to the county judge of Platte county by Mrs. Gorgen, his daughter and a legatee. In that document the testator bequeathed to Mrs. Gorgen two-ninths of his estate, and the remainder was divided in equal shares among the grandchild and six children. Five of these children contested the probate of said will because of the alleged mental incapacity of their father, and prevailed in the county court, but on appeal to the district court a jury found in favor of the proponent. The executors named in the will, five days subsequent to the day Mrs. Gorgen petitioned for the probate thereof, filed a written declination to accept said office, but thereafter Mr. Hansen, one of the executors, withdrew his declination, subsequently qualified and acted as executor. In his final report the executor charged the estate for money paid by him to attorneys for services rendered in probating the will. The contestants objected to the charges as unlawful. In argument they insist that the executor had no interest in probating the will and that Mrs. Gorgen, the proponent, should pay these fees. Judge Briggs appeared in the county court and in the district court for the proponent, and testified that he did so at the request of the executor and the proponent. Judge Sullivan first appeared in the district court, and testifies that he was employed by the executor. The executor was called by the contestants, and testified that he had nothing to do with employing counsel until after he was appointed executor. If he used the word appointed to designate the date he qualified as executor, he flatly contradicts his counsel. If he referred to the execution of the will, the date he was nominated or appointed by the testator, there is no contradiction. In the absence of explanation and in view of the finding of the district court, we shall adopt the latter construction. Both attorneys rendered the ordinary professional services incident to the administration of an estate subsequent to the probate of the will. The county judge disallowed part of the executor's charge for attorney fees, but the district court on appeal found the fees were reasonable and a proper expense of administering the estate.

Counsel for appellants in a persuasive brief and forcible argument at the bar asserts that the executor should only be allowed credit for money necessarily expended by him in payment of attorney fees for services rendered subsequent to his qualification as executor. The precise point involved herein has not been determined by this court. Sections 5002, 5003, 5004 and 5005, Ann. St. 1909, are as follows:

"Section 5002. Every person named as executor in any will shall, within thirty days after the death of the testator, or within thirty days after he has knowledge that he is named executor, if he obtains such knowledge after the death of the testator, present such will to the probate court, which has jurisdiction of the case, unless the will shall have been otherwise deposited with the judge of probate, and shall, within the period above mentioned, signify to the court his acceptance of the trust, or make known in writing to such court his refusal to accept it.

"Section 5003. Every person who shall neglect to perform any of the duties required in the last two preceding sections, without reasonable cause, shall be guilty of a misdemeanor, and shall be liable to each and every person interested in such will, for the damages which each person may sustain thereby.

"Section 5004. If any person having the custody of any will after the death of the testator shall, without reasonable cause, neglect to deliver the same to the probate court having jurisdiction of it, after he shall have been duly notified by such court for that purpose, he may be committed to the jail of the county by warrant issued by such court, and there be kept in close confinement until he shall deliver the will as above directed.

"Section 5005. When any will shall have been delivered into or deposited in any probate court having jurisdiction of the same, such court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this state as the judge shall direct, three weeks successively, previous to the time appointed, and no will shall be proved until notice shall be given as herein provided."

By section 5017 all of the estate of a testator is made liable for the expense of administration as well as for the satisfaction of his debts and the support of his family, Section 5148 provides that an executor or administrator shall be allowed all necessary expenses in the care, settlement and management of the estate.

In Clark v. Turner, 50 Neb. 290, 69 N.W. 843, Mr Commissioner IRVINE argues that the statute commands an executor, after knowledge that he has been nominated as executor of a will and that the testator had departed this life, to present the will for probate or renounce the trust. Whether the executor, if he does not resign, is charged with an imperative duty of propounding his testator's will is not involved in this case, and was not necessarily presented in Clark v. Turner, supra. Independently of such a construction of the statute, we are of opinion that the executor has the power to request probate of his testator's will, and in some instances it may be his duty to do so. 3 Redfield, Law of Wills (3d ed.) p. 8; Henderson v. Simmons, 33 Ala. 291; Phillips' Ex'r v. Phillips' Adm'r, 81 Ky. 328; Meeker v. Meeker, 74 Iowa 352, 37 N.W. 773; Lassiter v. Travis, 98 Tenn. 330, 39 S.W. 226. If a legatee petitions for the probate of his testator's will, the executor may ordinarily discharge his duty by awaiting the outcome of that application provided he has complied with the statute, supra, but he may lawfully combine with the legatee for the purpose of advancing the expressed will of the deceased. In the last named event, his reasonable counsel fees incurred in establishing the will are expenses of administration to be paid from the assets of the estate, unless he acted in bad faith. Phillips' Ex'r v. Phillips' Adm'r, Meeker v. Meeker and Lassiter v. Travis, supra; Succession of Heffner, 49 La. Ann. 407, 21 So. 905; ...