Kelly v. Davis

37 Miss. 76

• Court: Mississippi Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.-

This case is brought up by appeal from a decree of the Court of Probates of Hinds county, disallowing exceptions taken to the final account of Baldwin H. Beauchamp, administrator, with the will annexed of Littleton Kelly, deceased.

The facts necessary to be taken into view in considering the errors insisted upon by the appellants, are in substance as follows:

At July term, 1849, of the Court of Probates of Hinds county, a paper writing, purporting to be the last will and testament of Littleton Kelly, late of that county, deceased, was admitted to probate, on the application of Hiram Kelly, the executor named therein, to whom letters testamentary were then granted. This instrument directed that his entire estate should be divided equally between his widow and his seven named children, except his dwelling-house and lot, and blacksmith shop and lot, and a slave Hannah, which were given to his widow absolutely; that his estate should he kept together by his executor until his youngest child should become of age, and managed to the best advantage, and after paying annual expenses and maintaining and educating liberally the minor children until their majority, the balance of the proceeds of crops to he applied to the purchase of property at their discretion, for the interest of his heirs, and to be equally divided between his heirs, except the sum of ten dollars given to his granddaughter, Sarah J. Davis; that his step-daughter, Mary Priswood, be liberally educated and supported out of his estate until her marriage or a division of his estate. At November term, 1849, Henry Kelly and William Kelly, two of the children of the deceased, and Sarah J. Davis, a grandchild, filed their petition in the same court, denying the validity of the will and praying an issue of devisavit vel non to be made, citing the executor and Mary Priswood and the legatees, and the following children of the deceased, James Kelly, La Fayette Kelly, John Kelly, and Littleton Kelly, and Franklin Kelly, who appeared and answered the petition; and at May term, 1850, an issue was made up and sent to the Circuit Court to be tried; and about that time, and pending the contest, Hiram Kelly was removed from his office of executor, and, on the 16th May, 1850, letters of administration, with the will annexed, were granted to Beauchamp, who defended the suit and employed and paid counsel, and also paid the fees of those employed by Hiram Kelly. The verdict was against the will, and on the 7th December, 1854, it was set aside and annulled by decree of the Court of Probates. Pending this litigation, Beauchamp proceeded to execute the provisions of the will, and permitted the widow to have possession of the slave Hannah, until the end of the suit, without collecting hire; and Mary Priswood, a minor, and without property or guardian, and the minor children of the deceased, were supported and maintained by him out of the estate; and he took no steps, after the will was set aside, to recover hire for the slave Hannah, worth -one hundred dollars per year, from the widow, or the sums of money expended for Mary Priswood, nor did he take any bond to secure him for these expenditures, or for refunding the same. During the pontest in relation to the will, he kept the property together, according to the provisions of the will, and made crops; and, in the year 1855, the slaves were divided among the distributees under the authority of the court. Beauchamp continued to administer the estate until his death, in the year 1858, having returned divers annual accounts to the court, but without making a final settlement of the estate. In September, 1858, the appellees, his executors, filed their petition for an accouht and final settlement of his administration, exhibiting their account, and claiming allowance for all the expenditures- in execution of the will, pending the issue of devisavit vel non, including moneys paid for Mary Priswood, and for the minor heirs, and for counsel fees in the litigation, and rendering no account for the hire of the slave Hannah. To this account exceptions were filed by Henry Kelly, Sarah J. Davis, James Kelly, La Fayette Kelly, and John G-.' Kelly, on the ground that these expenditures should not be allowed, and that the administrator was chargeable for hire of the slave Hannah, and objecting to the allowance of commissions to the administrator, because the sum upon which commissions are claimed exceeds the inventory and the receipts properly in the hands of the administrator. These exceptions were overruled, and the account allowed, and commissions were allowed at the rate of three per cent, on the principal and five per cent, upon the income of the estate administered by Beauchamp. And from that decree this appeal is taken.

The first and principal question presented for decision is, whether, after a probate of a will in common form, in the Court of Probates, and a grant of letters testamentary or of administration, with the will annexed thereupon, and when an issue of devisavit vel non is duly made according to the statute, and is pending, such executor or administrator, having full notice of that proceeding, will be justified in distributing legacies pending the litigation, and in proceeding to execute the provisions of the will, which are different from what would be the-disposition of the property without-the will, if the issue should be decided against the validity of the will; and whether he will not be responsible, under such circumstances, to the distributees, for any loss which they may sustain by reason of his proceeding to execute the will.

In determining this question, we have to consider, 1st, the nature and extent of the powers of the executor, derived from such probate of the will and the grant of letters; and, 2d, the effect which the pendency of the issue of devisavit vel non has upon the exercise of his powers.

1. The probate and letters confer upon the executor or administrator, with the will annexed, a power generally to act according to law in relation to the estate. He is a trustee for the benefit of the estate and of those interested in it, and, as such, he is bound to act in good faith, and so as not to prejudice or jeopard the rights of those interested.' Having the authority of the court possessing jurisdiction to confer power upon him to act in the administration of the estate, he may generally act upon that authority in the performance of such duties as are warranted by law ; and he may, at all events, do all such acts as are beneficial to the estate, such as preserving the estate, collecting the debts, paying the debts, &c.: for these acts are beneficial to the parties interested whether the will be valid or not. But his powers are held in subordination to the authority of the court from which his letters proceeded, subject to its direction and control. Hence, though he has general authority to execute the will, he is bound by the orders and proceedings of that court touching the performance of his duties in that respect.

There appears to be but little analogy between his position and that of a sheriff acting under an execution. The writ commands the sheriff to do a specific thing, leaving him no discretion whether he will or will not do it; but the letters merely confer power upon the executor, with a largo discretion as to its exercise, and upon the plain trust that it is not to be exercised to the prejudice of those interested in the estate, except upon positive authority. The sheriff is justified in acting upon an execution, though it be afterwards set aside for irregularity; but the party to the judgment is not justified. The executor is the party obtaining the probate, and is not justified for acts done under it, especially after notice of its invalidity. Woolley v. Clark, 5 Barn. & Ald. 744. As a trustee he is bound to look to bis authority, and to take heed to the exercise of his powers whenever he has notice that the will is called in question, in due form of law. His authority, derived from his letters, it is true, is to execute the will. But when that is contested, in a mode prescribed by law, it is the part of prudence on his part, and justice to those interested as distributees, to pause.

2. The effect of the issue of devisavit vel non plainly is, to suspend such acts of execution of the will as will operate to the prejudice of the distributees, in the event that the result of the proceeding be to set aside the will.

The first probate of a will in this State is substantially after the same manner, and with the same effect, as the probate in common form in England; and it has been repeatedly held by this court, that such probate is a mere incipient step, necessary to enable the court to take steps to carry it into execution, but that it is not conclusive on heirs and distributees. Hamberlin v. Terry, 7 How. 143; Cowden v. Dobyns, 5 S. & M. 82; Garner v. Lansford, 12 Ib. 558. The statute prescribes the mode in which the heir or dis-tributee shall proceed to impeach the will. It is to be done in the same court in which the probate was granted, and the issue to try the validity of the will is made up by that court, and directed to be tried. Bearing in mind that the first probate is a mere incep-tive step towards the establishment of the will, and not conclusive upon the heir or distributee, what must he taken to be the effect of this proceeding in the Court of Probates ? It is manifestly a reexamination of the question of the validity of the will, and a demand upon the parties claiming under it to establish it. Can it be supposed that, notwithstanding these proceedings which the statute authorizes to impeach it, and during their pendency, it was contemplated that the executor might still proceed to deliver over to the insolvent legatees all the property bequeathed to them, and thereby place it beyond the reach of the distributees, when the will should be set aside ? Certainly not; for if this were allowed, the proceeding to set aside the will might be wholly nugatory to the distributees, after a long and expensive litigation.

From the nature of the proceeding, it has the effect to suspend the execution of the will, or at least to put the executor in -the position of acting, in executing it, at his peril. It is the assertion, by the parties who are not concluded by the probate, of their rights in opposition to the will. It notifies the executor of their claim, and operates as a Us pendens, affecting his subsequent action. Or it is analogous to a motion for a new trial at law, allowed by the court, and reopening the matter of controversy, and devolving the onus probandi upon the executor, thereby treating the preliminary probate as of no force.

Such being the clear legal effect of the proceeding, it was not necessary, and therefore was not provided by the statute, that the proceedings in execution of the will should be, by express words in the statute, suspended by the making up of the issue. But that such was intended to be the effect of the proceeding'is jrlain from the fact, that no mode is provided by law for staying proceedings in execution of the will, when it was so manifestly necessary to the protection of the rights of the distributees in such cases.

In order to test the correctness of this view, let us suppose that, after the issue is made up in the Probate Court and is pending, the legatee in the supposed will should apply to that court for an order directing the executor to pay his legacy, or deliver over the property bequeathed to him, — can it be maintained for a moment that such application should be granted ? The court should not hesitate to refuse it; because the will, under which it was claimed, had been virtually suspended by the pendency of the issue impeaching it. The probate was not conclusive of the rights of the distributee, and he had taken the steps prescribed by law to compel the executor to establish the will before proceeding further to execute its provisions. Clearly, the distributee was entitled to demand in some way that his rights should not be disregarded, by the executor proceeding to treat that as a will which could have no effect in law until the issue was disposed of, and either dismissed or found in favor of the will. It is suggested that he should have obtained an injunction restraining the executor from proceeding to execute the will. If so, it shows that it was a wrong to him to proceed to carry out the will and dispose of the property to irresponsible persons, proved afterwards not to be entitled to it; and the Court of Probate is competent to take cognizance of the wrong in settling the accounts of the executor with the distributees who have beén prejudiced by his conduct. But there was no necessity for either an injunction or an order positively suspending the execution of the will; for the pending of the issue was at least a Us pendens, of which the executor bad notice and by which he was bound, and which rendered him responsible for the wrong done to the distributees when the issue was afterwards found against the will, and it was annulled.

Hence the argument, in behalf of the appellees, that the administrator, with the will annexed, was justifiable in proceeding to execute the will pending the issue, because the probate and letters were a decree of a competent tribunal, which was final and conclusive until set aside, and a full warrant for his proceedings, — • cannot he maintained. The view as to the conclusiveness of the probate upon the distributees contesting the will, is contrary to the rule held in this court, as is above shown; and the doctrine is well established, that if an executor, after probate in common form, and with notice of the invalidity of the will, dispose of the property or assets to the legatees so that it is lost to the distributees, he is responsible to them in the event that the will is afterwards set aside. Woolley v. Clark, 5 Barn. & Ald. 744; Poag v. Carroll, Dudley’s Law and Eq. Rep. 4; Hele v. Stovell, 1 Ch. Cas. 126; Ralston v. Telfair et al., 2 Dev. & Batt. Eq. 419; Wood’s Admr. v. Nelson, 9 B. Munroe, 600; 10 Ib. 229.

Several authorities are relied on by the counsel for the appellees, holding that acts of an executor, before notice of the invalidity of the will, disposing of property, will be sustained, though the will he afterwards declared void; that dispositions of property by the executor to strangers, after probate of the will, they having paid the purchase-money, will not be disturbed, though the will be after-wards set aside; and sustaining acts done by the executor under a will afterwards set aside, the same being beneficial to the estate whether the will was valid or not, as receiving payment of a debt due the estate. To this effect are the cases, Poag v. Carroll, supra; Benson v. Rice, 2 Nott & McCord, 577; Wood’s Admr. v. Nelson, 9 B. Munroe; Peebles’ Appeal, 15 S. & R. 39; Toller on Exors. 75; Hyman v. Gaskins, 5 Iredell; 1 Lomax Exors. 201; 1 Wms. Exors. 406. But these cases are inapplicable to the question under consideration, which is the responsibility of the executor who disposes of the property in his hands under a will afterwards set aside, and after proceedings instituted, of which he had full notice, impeaching the validity of the will.

It is contended that the administrator in this case is protected from liability, by the phraseology of the decree setting aside and annulling the will “from this day hence,” the date of the decree. The verdict upon the issue was that the paper in issue was not the will of Kelly. Of course, the judgment must be understood by the verdict which it was to enforce, and could give no effect whatever to a will which was declared void. The judgment had relation to the date and time of execution of the paper, though rendered on the day of its date; and its legal effect is to annul the pretended will, to all intents and purposes. This objection is, therefore, without force.

The next question is, whether an executor or administrator, with the will annexed, has the right to charge upon the estate, or against the interest in it of the parties contesting the will, fees paid to counsel and other expenses incurred in the litigation to establish the will, if the result of the litigation be that the will is set aside.

If the will should be established by the litigation, it appears to be just that such expenses should be borne by the estate; because they would be beneficial to the parties interested; and to charge them upon the assets in the executor’s hands would be but to charge them upon the parties for whose benefit the litigation was conducted, and whose interest would be promoted by the establishment of the will. But quite a different reason is applicable to the case of a litigation conducted by the executor, which results in setting aside the will. In such a case, the litigation is against the interests of the parties rightfully entitled; and the question is, whether such parties should pay the expenses of a litigation against their interest, and in which they have been successful ?

We can perceive no principle of justice or rule of judicial proceeding upon which such parties should be so charged. The parties contestant are the executor and legatees, seeking to establish the will, on the one side, and the heirs at law and distributees, on the other; the affirmation of the issue being upon the former. To allow the party failing to maintain his suit, his costs and expenses against the adverse party, who was without fault, and had merely defended his just right against an unjust and unlawful claim asserted against it, would be unknown to judicial procedure. The result of the litigation establishes that he has but defended his lawful right against an unjust claim asserted against it; and yet, under the rule contended for, he is compelled to pay not only his own expenses for counsel fees and otherwise, but those of his adversary incurred in an effort to deprive him of his rights. Such a rule would be most unjust and oppressive, and the effect of it would be, that frequently, though the heir or distributee succeeds in establishing his right, he would receive little or no benefit from the estate which belongs to him, because it would be heavily charged, if not entirely absorbed, by charges incurred by the executor in endeavoring to deprive him of it entirely. Such a rule would tend to deter heirs and distributees from contesting illegal and unjust wills; for their own expenses in the litigation, which are generally onerous in such eases, they would have to pay at all events ; and if successful, their property would be charged with all the expenses of the adverse party. Thus they would certainly be compelled to bear a considerable expense on their own account, with a strong probability, if the estate was not very large, that they would ultimately receivq nothing from the property to. which they had established their right in the litigation. Such a controversy would not be worth pursuing.

The only reason in favor of such charges against the estate which has any force, proceeds upon the assumption- that it is the duty of the executor to support the will after the first probate. This is held in the case of Bradford v. Boudinot, 3 Wash. C. C. Rep. 122; but that case appears to be founded upon the provisions of the Statute of Pennsylvania of 1791, which continued the powers of the executor and sanctions all his acts pending the contest of the will, and which is construed to impose the duty upon the executor to conduct the litigation at the expense of the estate. 1 Wms. Exors. 406, note 1 (2d edit.). But for that statute, it must be presumed that the rule would have been held differently in that case.

That it is not the imperative duty of the executor to carry on-such a litigation appears to be clear from the views above stated upon the question first considered. If he have a personal interest and benefit in the estate under the will, he has an interest to support it in his individual right, and stands in the position of a legatee. But if the intei’est of the legatees be the subject-matter of protection, the executor has it in his power to protect both their interest and himself, by requiring them to employ counsel to represent their interest; and thus the burden of supporting the will is borne by those who claim rights under it, instead of those whose rights are taken away by it. The legatees, if they be adults, or their, guardians, if minors, are entirely competent to take steps to have their rights protected, and the duty of making judicious contracts to that end may be much more safely reposed in them than in executors, who cannot be supposed to take the same interest in' making such contracts as the parties who have' to pay them. If the legatees, upon being required, fail or refuse to employ counsel, it is their own fault, and 'the executor may well decline to do so¿ and rest upon- the assumption that the parties apparently in interest under the will are unwilling to incur the expense of the- litigation to establish it. Thus no prejudice would be done to the parties having the apparent interest, and the unjust result would be avoided of charging the other parties with the expenses of a litigation carried on directly to destroy their rights.

Upon this question, there is diversity of opinion in the several State courts in which it has been presented for decision. In Maryland and North Carolina, such expenses incurred by an executor in support of a will which is set aside in the litigation, have been held to be chargeable upon the estate. Compton v. Barnes, 4 Gill. 55; Marriner v. Bateman, N. C. Rep. 350; Ralston v. Telfair et al., supra; and also in the case above cited from 3 Wash. C. C. Rep., upon the reason of the statute. But the contrary rule is held in several well-reasoned cases in Pennsylvania, Ohio, and South Carolina. Mumper’s Appeal, 3 Watts & Serg. 441; Boyer’s Appeal, 13 Penn. State Rep. 569; Andrews v. Andrews, 7 Ohio State Rep. 143; Brown v. Vinyard, 1 Bailey Eq. Rep. 461.

The rule held by these latter authorities appears to be sound, and to be founded on the better reason ; and we have no hesitation in giving it our sanction.

It follows that the exception in this respect should have been sustained, so far as the distributees who contested the will or disclaimed any benefit under it in the suit, are concerned. But the legatees and distributees who were made parties to the proceeding, and answered the petition, insisting .upon the validity of the will, or not disclaiming any interest under it, are liable for the expenses and costs incurred in the litigation, each for his rateable proportion, including the widow and Mary Priswood, and the proportion of each distributee so situated is chargeable upon his distributive share in the hands of the administrator.

From the foregoing views of the controlling questions presented by the record, certain conclusions follow touching the details involved in the exceptions taken to the account.

1. That the administrator is accountable for the sums of money paid by him, under the will, for the support and maintenance of Mary Priswood, to the extent of the proportions of the distributees who contested the will.

2. That he is accountable, to the same parties, for their proportion of the hire of the slave Hannah, which he. permitted to remain in the possession of the widow without hire, in virtue of the will.

3. That in making distribution to the several distributees, those who have received moneys from the administrator are to be charged with the same as partial payments of their distributive shares, so as to make the share to which each of them may he entitled in the distribution, equal to the share to which each of the parties contesting the will is entitled, giving to those severally, who have received nothing, their full shares, and deducting from the shares of the others such, sums as 'they have received from the administrator.

4. The distributees having elected, in the matter of the administrator’s account, to consider him accountable for the proceeds of the plantation and slaves, instead of for rent and hire, for the purposes of the account, such proceeds must be considered as assets in his hands, and he is entitled to his legal commissions upon the same. But he is accountable to the parties who have contested the will, and have received no part of their distributive shares, for the full amount of their shares; and in paying the same, his commissions to the extent of the proportion of those distributees, which he has improperly paid to the others under the will, must be credited by that sum as so much money received by him, and due to the dis-tributees who contested the will. In other words, he is debtor to the estate to the amount of the proportion of the contestants of the money so misapplied, and must account for that in receiving from the contestants their proportion of his commissions. The shares of the contestants must be distributed to them without deduction for the unauthorized expenditures, and as though the administrator had all.the funds thus expended in hand; and if he has not enough to pay them their shares in that mode, and his commissions, the deficiency must be charged to his commissions, so far as the proportions of the contestants are concerned.

5. The administrator should be allowed his commissions upon the sums paid out under the will; for, although improperly paid, he is yet accountable for them, and is entitled to commissions as assets in his hands. And the rate of commissions allowed in the account appears to be reasonable.

6. The evidence is sufficient to establish the reasonableness of the charges for attorney’s fees in the litigation; and the exceptions of such of the appellants as did not contest the will, were properly overruled.

The decree is reversed, and the cause remanded for further proceedings, in conformity to the views herein stated.