Yerkes's Appeal

Decision Date02 October 1882
PartiesYerkes's Appeal.
CourtPennsylvania Supreme Court

Before SHARSWOOD, C.J., MERCUR, GORDON, TRUNKEY, STERRETT and GREEN, JJ. PAXSON, J., absent

APPEAL from the Orphans' Court of Philadelphia county: Of January Term 1882, No. 62.

COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED

George W. Thorn and George W. Biddle (M. Hampton Todd and George Biddle with them), for the appellants.—Mrs. Whitaker's estate was properly charged with her share of the general expenses of the administration. But she had no interest in the protracted litigation over the forged will, as she had elected to take under the intestate law. The benefits thereby conferred on a widow cannot be taken away by forcing her against her consent into an expensive litigation to sustain one will and destroy another, under neither of which she took anything, on the mere anticipation of the executors that she may lose everything. The real parties in interest must bear the burden of the contest: Dietrich's Appeal, 2 Watts 332; Koppenhaffer v. Isaacs, 7 Watts 170; Geddis's Appeal, 9 Watts 284; Mumper's Appeal, 3 W. & S. 441; Royer's Appeal, 1 Harris 569; Landis's Estate, 1 Phila. Rep. 528; Rankin's Appeal, 10 W. N. C. 235.

It is claimed Mrs. Whitaker continued liable, under the agreement with the parties interested in sustaining the first will, to pay a share of all the expenses, proportionate to the share she finally realized from her husband's estate. But the executors of Robert Whitaker's estate, the appellees here, were not parties to that agreement, and cannot enforce any supposed liability under it, especially in a proceeding in distribution in the Orphans' Court: Wickersham's Appeal, 14 P. F. S. 67. Moreover, the so called agreement was a mere power of attorney to the agents therein named, revocable, and in law revoked by Mrs. Whitaker's death, subject to reimbursing the agents for their outlay up to that time.

John G. Johnson, and C. S. Pancoast, for the appellees.— This is not the ordinary case of a contest between the legatees of two different wills, or a contest as to the distribution of an estate in the hands of honest executors — in such cases it is proper that the parties directly interested in the contest should pay the costs of such contest. Here the effort was on the part of executors to rescue the entire estate from the hands of conspirators, who had constituted themselves executors in a forged will. They had cleverly provided for the nephews and nieces in the forged will, and while it was really at the widow's interest that the conspirators levelled their scheme, the common danger of all was the embezzlement and spoliation of the entire estate by those into whose hands, as executors, it would pass under the forged will. Had the executors, after her death, abandoned their litigation, and yielded the estate to the conspirators, the widow, notwithstanding her election to take under the intestate law, would have had no "share of the estate" out of which to pay costs, or anything else; whereas, the result of the executors' defence of the estate is, that she receives, after deducting her share of the expenses in controversy, over $200,000. If the executors had abandoned the defence, she or her executors would have been the first to charge them with negligence. In Rankin's Appeal, 10 W. N. C. 235, one of the cases relied on by the other side, it is said in the opinion of the court: "When the interests of all parties under a testamentary instrument are menaced, it may be the duty of the executor or trustee therein named to uphold and defend it."

But Mrs. Whitaker, and her representatives, are bound by the agreement of August 1878, which was not a mere revocable power of attorney, as contended, but a mutual agreement entered into by numerous parties for their joint protection, on the faith of which legal proceedings were begun, in Mrs. Whitaker's lifetime. The death of one of the parties could not revoke it, as to such party, nor release his or her estate from liability to contribute to the costs of the proceedings down to their final consummation.

The agreement comes within the class of cases excepted from the quality of revocability, because of its being coupled with an interest, not arising out of the paper itself, but antecedent to and giving rise to the agreement: Hartley and Minor's Appeal, 3 P. F. S. 212; Blackstone v. Buttermore, Id. 266. In the last case it is said that a power of attorney is irrevocable where "it is to be used as a means of effectuating a purpose necessary to protect the rights of the agent or others" — which is our case. In the following cases contracts similar to the one in hand were held irrevocable, on the principle of mutuality: Chambers v. Calhoun, 6 Har. 13; Edinboro Academy v. Robinson, 1 Wright 210; Hart's Estate, 7 W. N. C. 162; Addison on Contracts 34, §§ 18, 361.

No recovery in personam is here sought, nor do the executors seek to profit by it individually, but merely to protect the rights of the other distributees, in their due administration of the estate.

When costs are incurred for the benefit of the whole estate they are payable out of the estate before distribution: Geddes's Appeal, 9 Watts 285; Scott's Estate, 9 W. & S. 98; Rankin's Appeal, supra.

Mr. Justice STERRETT delivered the opinion of the court, October 2d 1882.

The question in this case is, whether the expenses of litigation in the issue devisavit vel non, amounting to over $50,000, were a proper charge against the estate. It is conceded that the appellees, executors of Robert Whitaker, deceased, expended that amount in counsel fees and other expenses incident to the second trial of the feigned issue, but the contention is that it should not be so credited as to lessen the distributive share to which appellants, as executors of testator's widow, are entitled.

The controlling facts under which the question arises are briefly these: Robert Whitaker died in August 1878, leaving a widow, but no issue surviving him. Two testamentary papers were presented for probate, in one of which the appellees were appointed executors, and in the other, purporting to be of subsequent date, Messrs. Sheetz and Negus were named as executors. In the issue directed to test the validity of the last mentioned paper, a verdict against it was taken by consent of the parties thereto, and the other paper was immediately admitted to probate as the last will of Mr....

To continue reading

Request your trial
27 cases
  • Wood v. Kerkeslager
    • United States
    • Pennsylvania Supreme Court
    • June 22, 1909
    ... ... Kerkeslager No. 110Supreme Court of PennsylvaniaJune 22, 1909 ... Argued: ... April 19, 1909 ... Appeal, No. 110, Jan. T., 1909, by plaintiffs, from order of ... C.P. No. 5, Phila. Co., June T., 1908, No. 2,606, discharging ... rule for judgment for ... ...
  • Wood v. Kerkeslager
    • United States
    • Pennsylvania Supreme Court
    • June 22, 1909
    ... ... Supreme Court of Pennsylvania ... April 19, 1909 ... June 22, 1909 ...         Argued April 19, 1909 ...         Appeal, No. 110, Jan. T., 1909, by plaintiffs, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,606, discharging rule for judgment for want of a ... ...
  • In re Estate of Smith
    • United States
    • Iowa Supreme Court
    • April 14, 1914
    ... ...           Appeal ... from Benton District Court.--HON. C. B. BRADSHAW, Judge ...          OBJECTIONS ... to the final report of the executors of the ... ...
  • Emmons v. McCreery
    • United States
    • Pennsylvania Supreme Court
    • March 14, 1932
    ... ... 132Supreme Court of PennsylvaniaMarch 14, 1932 ... Argued: ... January 19, 1932 ... Appeal, No. 132, Jan. T., 1932, by defendants, from judgment ... of C.P. No. 1, Phila. Co., June T., 1930, No. 480, on verdict ... for plaintiff, in case ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT