Minnesota Loan & Trust Co. v. Pettit

175 N.W. 540, 144 Minn. 244, 7 A.L.R. 1496, 1919 Minn. LEXIS 731

• Court: Supreme Court of Minnesota
• Decided: December 5, 1919
• Docket: No. 21,475
• Status: Published

Opinions

Quinn, J.

Curtis H. Pettit died intestate May 11, 1914, at his home in Hennepin county, leaving him surviving his widow, Deborah M. Pettit, and their only child, Bessie P. Douglas, who had three minor children. He left a large estate consisting of valuable stocks, bonds, real estate and mineral interests in northern Minnesota, from which large royalties were derived. His will was dated January 22, 1908, in which appellant was nominated executor and trustee. By the terms of the will the entire estate, aside from household furniture, wearing apparel and personal effects, $2,000 for the upkeep of the lots in the cemetery, and $1,000 to a servant, was bequeathed and devised to appellant in trust, to hold, manage and control during the life of his wife, their daughter, her husband and their three children and for 20 years after the death of the survivor of them, when the trustee was to turn over the property and net accumulations thereto to the children of the three children of Mrs. Douglas.'

At the time of the execution of the will, Mrs. Pettit indorsed thereon her consent to the provisions thereof. On May 15, 1914, Mrs. Douglas presented the will to the probate court of Hennepin county, and asked that it be admitted to probate. The will was admitted to probate, appelant was appointed and duly qualified as executor and thereafter entered upon the discharge of its duties. At the hearing to admit the will to probate Mrs. Douglas filed notice that she reserved the right to object and contest any provisions of the will.

On June 20, 1914, Mrs. Pettit filed with the probate court a rescission and withdrawal of her consent to the provisions of the will and gave notice of her intention to take, in lieu of the provisions of the will, the share of her husband’s estate to which she would have been entitled had there been no will. Appellant opposed this action on the part of Mrs. Pettit. A hearing was had thereon, which resulted in a decree of the probate court in favor of the widow, which was affirmed by this court upon certiorari. 129 Minn. 442, 152 N. W. 845, L.R.A. 1915E, 815.

The executor then proceeded to administer the estate in the usual manner, and on August 6, 1915, filed its final account and asked that the estate be distributed. Prom such account it appeared that all of the debts, the legacy of $1,000 and the expenses of administration, including $5,993.72 for attorneys’ and executor’s fees had been paid in full, and that there remained in the hands of the executor for distribution, personal property of the value of $148,038.68, and the real estate, including the mineral holdings.

On January 28, 1916, the probate court made a decree of distribution, adjudging and decreeing that the provisions of the will, except as to the legacy of $1,000, were invalid,' inoperative and void as a disposition of real and personal property under the laws of this state; that Deborah M. Pettit, widow of deceased, was entitled to an undivided one-third of the real and personal property then in the hands of the executor, and that Bessie P. Douglas, daughter of deceased, was entitled to two-thirds thereof. The widow and heirs were satisfied with the decree of distribution. The debts and expenses of administration had all been paid. The estate had been fully administered and the property was intact with the executor. The executor then appealed from that part of the decree of distribution which gave the daughter two-thirds of the estate, to the district court, where an affirmance was had. 'Thereafter it appealed from the judgment of the district court to this court and the judgment was affirmed. 135 Minn. 413, 161 N W. 158.

In February, 1917, the executor filed a supplement to its final account, setting forth the receipts and disbursements subsequent to the rendering of the final account, in which it asked credit for $5,000 as executor’s fees, $4,900 for legal services and $47.84 for transcripts and printing, all in connection with the two appeals following the decree of distribution.

The widow and daughter objected to the allowance of these items, upon the ground that they were charges for disbursements made by the executor and trustee under 'an invalid trust, in connection with unsuccessful appeals by it from the decrees of the probate and district courts. The probate court disallowed all of such claims, except that it allowed the executor $1,800 for services in caring for the estate subsequent to the filing of the final decree. Thereupon the executor appealed to the district court from that part of the decree of the prdbate court disallowing such items, and the widow and daughter appealed from the allowance of the item of $1,800.

In January, 1919, the district court filed its findings of fact and conclusions of law, holding that all the items for which credit was asked were for disbursements in unsuccessful appeals by the executor from the decree of distribution, and affirmed the action of the probate court in disallowing the same and reversed the order allowing the item of $1,800. Judgment was entered accordingly and the executor appealed. No question was raised as to the competency of the testator to make his will nor as to the good faith of the executor throughout.

The question is presented: Is an executor, nominated in a will, entitled to reimbursement from the funds of the estate for services, expenses and counsel fees, in an unsuccessful appeal to sustain the will, the heirs contesting upon the ground that the will is void under the statute of trusts? The identical question, in principle, was passed upon by this court in the case of Kelly v. Kennedy, 133 Minn. 278, 158 N. W. 395, L.R.A. 1917A, 448, Ann. Cas. 1918D, 164. There the executor was nominated in the will, he presented the same for probate, the sole heir contested upon the ground of want of testamentary capacity in the testatrix. The will was allowed in the probate court and the allowance was affirmed in the district court. On appeal there was a reversal. Upon the second trial in district court the will was disallowed, and upon appeal there was an affirmance. The probate court allowed the executor for his services and disbursements for expenses and counsel fees in connection with the contest of the will. Upon appeal the district court reversed the probate court and disallowed the claims. Throughout, the executor acted in good faith. In that case it was held that no legal duty rested upon the executor to procure probate of the will, and that he was not entitled to payment out of the funds of the estate for such disbursements. No different rule applies in this case, because the contest is upon the ground that the will is .void under the statute, and we see no distinction such as would tend to change the rule adopted in the case cited.

Affirmed.'