Succession of Morere

MOORE, J. This case is a sequence of Suc. Morere reported in the 113 La. 506. [156] It appears that Bartholomew Morere, a brother of Pierre Morere, deceased, with full knowledge of the notorious insanity of the latter, caused to be probated by ex parte proceedings, a paper, if indeed he did not influence its confection, purporting to be the last will and testament of Pierre Morere by which he, Bartholomew Morere, was named as executor; that said probate was set aside and the will declared null and void, at the suit of the surviving widow and natural tutrix of her children; the executor divested of his trust and the estate ordered turned over to the said widow in her said representative capacity. Sue. Morere 113 La. 506. Thereafter the late executor filed his final account, placing himself thereon as a creditor for $660.45/100, due him as his commissions as said executor, and charging to the estate a sum of $500.00, due another attorney, who was employed by him to represent him in his said representative capacity in the contest over the validity of the will. These items were opposed by the widow and natural tutrix; and from a judgment dismissing the opposition she appeals. It 'may not be doubted that it is the imperative duty of the executor of a last will and testament, who has accepted the trust, to do everything necessary to sustain the validity of the will under which he holds letters of executorship, and, that when he is brought into Court in his official capacity to defend an attack upon the validity of the will which he is executing, he may employ counsel to defend such suit in which, the service of such counsel, and likewise the executor’s commissions, whatever may be the result of the litigation, may be chargeable to the estate This is predicated of the theory that the executor is acting in the matter in good faith; for the benefit of all parties in interest, and not for his personal benefit and advantage. If, however, the person named as the executor of a will is in bad faith; has full knowledge of the absolute nullity of the will; and, as in this case, knows of the notorious insanity of the person making the will at the time of its execution; is himself a secret debtor to the deceased in a large amount, and not only does not reveal these facts on presenting the alleged will to the Court [157] for probate in order that the validity of the will may be inquired into contradictorily with all parties interested, before any order of probate is made, but who, on the contrary, hurriedly caused the will'to be probated and himself to be recognized as executor thereunder, he but perpertrated a fraud on the Court and must personally bear all the expenses which his fraudulent action has entailed. Still less can he be made a beneficiary of his illegal acts by recovering commissions as executor. As said in Fenner vs. Suc. McCan 49 A. 608: “An admin-istrador or executor who has a personal interest to 'defend, or who has committed acts of maladministration, cannot have his interest protected or his illegal acts defended at the expense of 28 A. 183 11 Mar. 327. In the instant case Bartholomew Morere’s conduct was beyond simply defending a “personal interest,” and, in a measure, greater than the mere commission of an act of maladmistration. Fie had practiced, as we have said, a fraud on the Court by presenting and urging for probate, and having probated a paper purporting to be a will, which the Supreme Court in the case, cited, supra, declares he knew was executed at a time when his brother was notoriously insane. He cannot be allowed any commissions and to that extent the judgment will be set aside. So far as the claim of the attorneys for their fees are concerned we are of the opinion that whilst Bartholomew Morere can be made to reimburse to the estate, in a proper suit filed for that purpose and instituted by the widow and natural tutrix, — those fees as well as all other charges and expenses which his illegal action has imposed on the estate, nevertheless, as these attorneys were acting in absolute good faith in this matter, they should not be made to look to Bartholomew Morere personally for their compensation, whatever may be the rights of the estate as between it and Bartholomey Morere, but should be paid by the estate. It is therefore ordered adjudged and decreed that the judgment appealed from be and the same is hereby amended to the extent that it dismisses so much of the oppostion filed to the item of six hundred and sixty 45/100 dollars claimed by the accountant as his commissions as executor; the opposition to this item being hereby [158] sustained, and the said sum disallowed; and as thus amended the judgment is affirmed. The cost of the Court as well as that of the lower Court to be paid by the appellee Bartholomew Morere. Feb. 5, 1906.