In re Estate of Fry
| Decision Date | 09 June 1902 |
| Citation | 70 S.W. 172,96 Mo.App. 208 |
| Parties | In re Estate of MARIA S. FRY |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. W. W. Graves, Judge.
AFFIRMED.
Judgment affirmed.
Smith & Denton for appellant.
(1) The appellant as executor, as well as trustee for two of the legatees, looked after and took entire charge of the establishing of the paper writing as the last will of Maria S. Fry, deceased, after the contest had been instituted in the circuit court. It will be claimed by the appellee that the case In re Estate of Soulard, 141 Mo. 642, is decisive of the question involved in this case, but we maintain that the question involved in that case was different as shown by the statement of the court, loc. cit 665. (2) The Supreme Court, in Cash v. Lusk, 142 Mo. loc. cit. 637, has held that once a contest of a will is commenced in the circuit court, the said court thus acquiring jurisdiction shall proceed as required by the statute to determine whether the paper writing in question is or is not the will of the decedent, and held further for that reason the party named as plaintiff in the said contest could not be required to give security for costs.
W. O Jackson and Francisco & Clark for respondent.
(1) The expense, costs and attorney's fees incurred by an executor of the will, who is also a beneficiary under the will, in defending a suit contesting the validity of the will, he being a party to the suit, himself, in his own proper person, as well as executor, can not properly be charged against, and paid out of the asset of the estate but such expense should be borne by the parties who are interested in the suit and are real and necessary parties. In re Estate of Soulard, 141 Mo. 642; Woerner's American Law of Administration, sec. 517. (2) The amount of the assest of an estate are not affected whether there be a will or not and the result of the contest only affects those interested after the estate proper is settled and they, and not the estate, should bear the expenses of the contest. In re Estate of Soulard, 141 Mo. 642; Yerkes's Appeal, 99 Penn. St. 401; Mumfer's Appeal, 3 Watts & S 441; Andrews v. His Administrator, 7 Ohio St. 151; Shaw v. Moderbull, 104 Ill. 65.
--It appears that Maria S. Fry departed this life at the county of Bates, first having made her last will by which she devised and bequeathed to her children, therein named, certain property and money of which she died possessed. By said will the defendant, Albertus Fry, was named the executor thereof. It was duly admitted to probate by the probate court of the county in which the testatrix died.
Later on, Elmira F. Flickinger, a daughter of the testatrix and legatee under the will, instituted in the circuit court, a proceeding against the other legatees therein named, including the executor, under section 4622, Revised Statutes 1899, to contest the validity of the said will. This proceeding resulted in the establishment of the will. The costs and expenses thereof, of which the following are the items:
Trip to Springfield, Depositions
$ 18 70
Paid R. H. Mackey
Depositions
8 50
Judgment Flickinger vs. Fry
135 50
Attorneys' Fee to Smith & Denton
were paid by the executor, and in his final settlement in the probate court he asked a credit therefor, and to the allowance of which Thomas J. Fry, one of the legatees objected.
In the circuit court, where the controversy was removed by appeal, the objection to the allowance of such credits was sustained, and judgment given accordingly, and the executor appealed. The will of Mrs. Fry was finally probated, and the question now is, whether or not, after such probate, her estate can be made liable for the expenses incurred in the proceeding under the statute to contest the validity of such will.
The technical contest in such statutory proceeding is over the validity of the will, but the ultimate object--the real object--is to determine the rights of the parties to the property. The estate is neither increased nor diminished by the result, and the executor is only interested in seeing that the formal proof of the due execution of the will is made. As said by Judge MACFARLANE in, In re Est. of Soulard, 141 Mo. 642, 43 S.W. 617: ...
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