In re the Judicial Settlement of the Account of Proceedings of Fraser

Scott, J.: The appellant Harry Allen appeals from so much of a decree of the Surrogate’s Court as refuses to allow his claim to be reimbursed out of the estate for legal expenses rendered to him as executor of the last will and testament of John 0. Latham, deceased. Ho question is made by the respondent as to the reasonableness of the amount claimed, the sole question being whether or not appellant is entitled to be reimbursed. The services claimed fall under two heads, to wit, those rendered to the appellant as one of the proponents of the will, and those rendered in resisting objections to his appointment as executor. Mr. Latham’s will named three executors, this appellant and two others. These retained a firm of attorneys to present the will for probate, and they were met with what appeared to be serious opposition to the probate on the part of the widow of the testator. As the contest progressed, appellant became dissatisfied with the manner in which it was being conducted on behalf of the proponents, and retained another firm of attorneys to assist in the proceeding. Both firms of attorneys thus retained were of high standing at the [443] bar, their relations were cordial, and they co-operated and consulted in the most friendly manner in preparing for trial, which, as they reasonably expected, would be sharply contested. As it happened, however, the opposition to the probate collapsed when it came to trial, and the will was admitted to probate practically without opposition. The widow, however, carried on the contest so far as concerned the issue of letters testamentary to this appellant, and was successful in the Surrogate’s Court, the letters being issued only after an appeal to this court, where the order of the surrogate refusing to issue letters was reversed. (Matter of Latham, 145 App. Div. 849.) It is certainly the right, although perhaps not the absolute duty, of a person named in a will as executor not only to present the will for probate, but also to insist upon the issue to himself of letters testamentary. In so doing he but carries out the expressed wish of the testator, and the legal expenses necessarily incurred in the performance of this right are a proper charge against the estate. The multiplication of attorneys is of course to be deprecated, and the better course undoubtedly is that all of the executors shall be represented by the same attorneys. But when several persons have been named as executors a certain degree of personal and individual responsibility rests upon each of them as to the manner in which any opposition to the probate of the will shall be met, and when one executor is honestly, not capriciously, dissatisfied with the method of defense adopted by the original attorney for the executors, we are not prepared to say that he may not employ an additional and independent attorney. Whether or not he shall be allowed the expense incurred in so doing must depend in each case upon his good faith, the reasonableness of his acts and the benefits accruing to the estate therefrom. In the present case every indication points to appellant’s good faith; his action in retaining additional counsel seems to have been reasonable, and we have no doubt that, if the contest had been as bitterly carried on as there was every reason to suppose it would be, the services of the counsel retained by the appellant would have proved beneficial to the estate. As to. the expense incurred in obtaining letters testamentary, that seems to be even more clearly a proper charge against the [444] estate. Again it tends to carry into effect the declared wish of the testator. The fact that since the issue to him of letters testamentary the appellant has taken hut little part in the administration of the estate has no real bearing upon the present controversy, especially in view' of the fact that he has expressly waived and relinquished any claim for fees as executor. If he has failed in his duty as executor, the proper remedy would be to remove him. The reasonableness of the charges being admitted, we are opinion that no sufficient ground was shown for refusing to allow them to the appellant. The decree appealed from should be reversed in so far as it confirms the report of the referee sustaining the objection to the above-mentioned claims of appellant, and disallowing said claims, and said decree is hereby modified so as to overrule said objections and allow said claims, and as so modified is affirmed, with costs to the appellant payable out of the estate. Clarke, McLaughlin and Laughlin, JJ., concurred; Dowling, J., concurred in the allowance of the counsel fee for services rendered in the probate proceedings, but dissented from the allowance of the counsel fee for services rendered in resisting the objections to the appointment of the executor. Decree reversed and modified as indicated in opinion, and as so modified affirmed, with costs to appellant payable out of the estate. Order to be settled on notice.