Wells Ex Rel. Harris v. Odum

BbogdeN, J. Is reasonable compensation for attorney for successful propounders in a caveat proceeding allowable and payable out of the assets of the estate? The allowance of compensation to attorneys for caveators was discussed and decided by this Court In re Will of Howell, 204 N. C., 437, 168 S. E., 671. The Court said: “There seems to be no precedent in this jurisdiction for ordering an executor bringing the proceedings to pay out of the estate counsel fees for the attorneys for caveators. Nor is the authority supported in tendency by our decisions. They point in the other direction.” Therefore, the vital inquiry is whether pro-pounders stand upon a different footing. It is a crime in this State to fraudulently suppress or conceal a will. C. S., 4256. Obviously the basis for making such suppression a crime is the fact that it is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at according to the orderly processes of law. Moreover, C. S., 4139, and C. S., 4141, by implication at least, require the probate of a will. Furthermore, C. S., 4140, provides that if the executor fail to prove the will according to lawj any devisee or legatee named in the will, “or any other person interested in the estate, may make such application upon ten days notice thereof to the executor.” In the case at bar the interest of the executor was identical with that of the caveators. He did not conceal this interest, but openly advised the propounders by letter of his position. In view of such circumstances, it was the duty of the propounders to establish the validity of the will. The trial judge found as a fact that the “responsibility of securing probate of said will in solemn form devolved upon the petitioners,” and that if they “had not propounded said will it would not have been proven in solemn form and the wishes of the testatrix would have been defeated.” The question of law presented by this appeal has not been decided in this State, but it would seem to be clear that if the law imposes a duty upon a person, or group of persons, with respect to probating and establishing the validity of a will, in the performance of such duty, in good *229 faith, reasonable expenses thereby incurred should be allowed and paid out of the fund or property which is the subject of the litigation. Manifestly, if the executor had been in a position to probate and establish the validity of the will, reasonable attorneys’ fees could have been allowed in the discretion of the court. This idea was expressed in Parsons v. Leak, 204 N. C., 86, 167 S. E., 563, as follows: “It has been the policy of the law to permit and allow reasonable commissions to executors and administrators, together with reasonable attorney’s fees and such other assistance as might be reasonably necessary to proper and efficient administration.” See, also, Overman v. Lanier, 157 N. C., 544, 73 S. E., 192; Shepard v. Bryan, 195 N. C., 822, 143 S. E., 835. See, also, Butt v. Murden, 69 A. L. R., 1048, and annotation. Upon the particular facts disclosed by the record, the Court is of the opinion that the trial judge did not transcend his power or abuse his discretion in awarding compensation to the attorneys of the propounders. He found the compensation so awarded to be reasonable, and there is nothing in the record warranting a contrary view. Affirmed.