In re Smith's Estate

• Decision Date: 14 April 1914
• Citation: 146 N.W. 836,165 Iowa 614
• Parties: IN RE SMITH'S ESTATE.
• Court: Iowa Supreme Court

165 Iowa 614

146 N.W. 836

IN RE SMITH'S ESTATE.

Supreme Court of Iowa.

April 14, 1914.

Appeal from District Court, Benton County; C. B. Bradshaw, Judge.

Objections to the final report of the executors of the estate of George Smith, deceased, interposed by Lena Sevenning and Elizabeth Boddicker, were overruled and they appeal. Reversed.Redmond & Stewart, of Cedar Rapids, for appellants.

Kirkland & White, of Vinton, for appellees.

LADD, C. J.

The will of George Smith, who died in June, 1909, nominated Jacob Hofferd and Joseph Schulte as executors, and the former employed Kirkland & White to present and procure said will to be admitted to probate. Two daughters of the deceased interposed objections thereto. The widow died a few weeks later, within six months after the testator, without electing to take under the will, and therefore must be held to have taken one-third of the estate. Section 3376, Code. Of the remaining two-thirds, the personalty was to be divided between the daughters and George Henry Smith, a son of the testator's deceased son, Henry, share and share alike, and the realty was left to the grandson burdened with the requirement that he pay one of the daughters $500 and the other $1,500. Charles Schmidt, a brother of the deceased son's wife, was appointed guardian of George Henry Smith, and filed a petition of intervention joining the proponents in asking that the will be admitted to probate, and he was also appointed special administrator of the estate. On trial a verdict was directed for the proponents, and on appeal the order admitting the will to probate affirmed. Sevening v. Smith, 153 Iowa, 639, 133 N. W. 1081. Thereupon the executors nominated in the will were appointed, and on September 24, 1912, filed their final report, showing that they had realized from the personalty $13,947.47, and had paid out $1,078.92, concerning which there was no dispute, and $2,500 to “Kirkland & White, attorneys in full of all services in settlement of said estate, including their services in the will contest in this court and in the Supreme Court of the state of Iowa, and in preparing said report,” and especially prayed that this be allowed and approved. The daughters filed exceptions thereto: First, on the ground that the estate of the widow should not be charged with any of the expenses incurred in the will contest; and, second, that the controversy over the admission of the will to probate was in fact between George Henry Smith and these objectors, with his brothers and sisters, and that, as he acquired all the benefits of the establishment of the will, the attorney's fee should not be paid from the general funds of the estate.

I. The first objection should not have been sustained. It is conceded that one-third of the estate, unaffected by the will, belonged to the widow; her interest in the realty vesting immediately upon her husband's death and in the personalty upon distribution by the executor. Personal property not necessary to the payment of debts nor otherwise disposed of is to be distributed the same as real property. Section 3362, Code.

[1] Attorney's fees are charges against the executor or other person employing them primarily, and do not constitute debts against the estate. Clark v. Sayre, 122 Iowa, 591, 98 N. W. 484;In re Sawyer's Estate, 124 Iowa, 485, 100 N. W. 484.

[2][3] How may the personalty be “otherwise disposed of” before distribution? Not by the will of the deceased so as to affect the widow's third. Property exempt to deceased as the head of the family is to be set apart to the widow. Section 3312, Code; Ward v. Wolf, 56 Iowa, 465, 9 N. W. 348;Linton v. Crosby, 61 Iowa, 293, 16 N. W. 113. And there is to be paid therefrom the expenses of administration, the charges of the last sickness and funeral of deceased, and the allowance made by the court for the maintenance of the widow and minor children. What remains is to be distributed, and the only question here is whether compensation for the services of proponents' attorney in contesting a will in which the widow had no interest should be included as a part of the expenses of administration and her share of the personalty charged with its proportionate share thereof. She was not a party thereto, and had no such interest therein as would have enabled her to contest the validity of the will. Fallon v. Fallon, 107 Iowa, 120, 77 N. W. 575. Of course, compensation for legal services incident to the settlement of the estate, aside from this contest, should be included in the expenses of administration, for that such services were for the benefit of the entire estate. But we can perceive no tenable ground for burdening those in no wise interested, in a contest instituted by the daughters and resisted in behalf of the grandson solely for their own advantage. In Bennett v. Hibbert, 88 Iowa, 154, 55 N. W. 93, the plaintiff, a recognized illegitimate daughter, was not a party to the contest, though a devisee, it being agreed she should take as in the will directed, and though the parties stipulated that the costs and attorney's fees be taxed against the estate, the court concluded that the property left to her should not be burdened with such expenses, saying: “We are not able to understand why this plaintiff should be burdened with any part of the cost or expenses of that proceeding. She was not there asking for any benefits, and the pleadings of the contestants preserved to her all that the will intended for her. She was not a party to the stipulation upon which the costs were taxed. With such a situation the stipulation upon which the costs were taxed should affect only the parties to it, and the record would not justify a judgment burdening her interest in the estate with costs, to the making of which she was in no way a party, nor in any sense, responsible.” See, also, Swift v. Flynn, 145 Iowa, 631, 124 N. W. 626.

[4] To burden the widow's share with expenses incurred, not for the benefit of the entire estate in which she had some interest, but for the sole advantage and in the interest of others, would be contrary to the spirit of fairness which always ought to obtain in dealing with and distributing the property of deceased persons in this state. No part of the expenses of the contest should be deducted from the widow's share. See Yerke's Appeal, 99 Pa. 401.

[5] II. It will be observed that Hofferd, when he employed the attorneys, was not the executor of the estate, but had merely been nominated as such in the paper purporting to be the last will of the deceased. He had no pecuniary interest in the estate, and undoubtedly acted in entire good faith in what he did. But it should be borne in mind that, until admitted to probate, such paper cannot be accorded the force of a will, nor can the person nominated be regarded as the representative of the deceased. Such person may rest under a moral obligation, especially if he desires to qualify, to offer the putative will for probate, but certainly, in the absence of the statute, he owes no imperative duty so to do. Even if he does present the instrument for probate, he has before him two alternatives, either of which he may adopt, he may cast the burden of the contest upon those who are to be benefited by the probate of the paper, or he may assume the burden himself. If the latter course is taken, he must be deemed to have done so with the knowledge that even a de jure executor cannot bind the estate by a contract of his own making, and that any liability which he incurs or expenditures which he makes under such contract is regarded as his personal obligation until it has been allowed to him upon the judicial settlement of his accounts. If one who is actually an executor under a valid will cannot bind the estate by his executory contracts, on what theory can it be done by one who assumes to act under a paper not admitted to probate? Dodd v. Anderson, 197 N. Y. 466, 90 N. E. 1137, 27 L. R. A. (N. S.) 336, 18 Ann. Cas. 738;Royer's Appeal, 13 Pa. 569.

[6] In this state the person having custody of the will is bound, upon being informed of the death of the testator, to file the same with the clerk. Section 3282, Code. And the clerk upon opening the will and reading the same is required to fix a date for approving it. Section 3283, Code. This necessarily involves certain costs in determining whether the property of the deceased should be distributed according to the terms of the paper purporting to be the will of the deceased, or descent in accordance with the statutes of the state, and are properly chargeable against the estate. Meeker v. Meeker, 74 Iowa, 352, 37 N. W. 773, 7 Am. St. Rep. 489;Perkins v. Perkins, 116 Iowa, 253, 90 N. W. 55. Where the contest is between beneficiaries, however, the rule varies somewhat. Allen v. Seaward, 86 Iowa, 718, 52 N. W. 557;Lingle v. Lingle, 121 Iowa, 133, 96 N. W. 708;Kirsher v. Kirsher, 120 Iowa, 337, 94 N. W. 846. Though another reason is given in Meeker v. Meeker, supra, these statutes seem to furnish true ground for taxing such costs against the estate of the deceased in event the intent to probate the will is unsuccessful. There is a sharp conflict in the authorities as to whether counsel fees for services rendered in undertaking to establish a will where the effort is unsuccessful may be allowed a person nominated in the will as executor. The decisions holding that such fees should be allowed proceed on 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 thereby becomes legally entitled to reimbursement of reasonable expenses necessarily incurred. Lassiter v. Travis, 98 Tenn. 330, 39 S. W. 226; Hazard v. Engs, 14 R. I. 5; Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590; Tuohy v. Hanlon, 18 App. D. C. 225.

On the other hand, it is said that this theory is contrary to certain elementary principles underlying the administration of decedent's estates,...