
    John McKnight vs. George S. Wright and others.
    
      JExecutor — Costs of probate.
    
    Where a will is proved in common form and afterwards is proved in solemn form, but on appeal is set aside by the verdict of a jury, the executor is entitled to be reibabursed out of the estate all his expenses and costs up to the time of the rendition of the verdict; the costs of an appeal which is dismissed he will not be allowed.
    BEFORE INGLIS, CH„ AT YORK, JUNE, 1860.
    This case will be sufficiently understood from the decree of his Honor, the Circuit Chancellor, and the proceedings in the case of McKnight vs. Wright, 12 Kich, 232, which were in evidence. The decree is as follows:
    Inglis, Ch. A paper, purporting to be the last will of George Wright, was admitted to probate in common form, and the present plaintiff was qualified as executor thereof. Afterwards, at the instance of the two infant grandchildren of the deceased, defendants hereto, who were wholly unprovided for therein, proper proceedings were instituted in the Court of Ordinary, for the purpose of inquiring into the legal validity of the alleged will. The decree of the Ordinary, in favor of the will, was reversed, upon appeal in the Common Pleas, and the judgment of reversal was affirmed by the Court of Appeals in Law. The contestants, in whose favor the final judgment was then pronounced, taxed their “ costs, charges, and expenses,” and process of execution to enforce payment thereof has been lodged with the Sheriff. (A. A., 1839, Ordinary’s Act, sec. 13.) The plaintiff seeks to restrain proceedings under this process, and to compel the administrator of the estate to pay out of the assets of the deceased, not only the costs of the prevailing party in the , litigation so taxed, but also the costs and " expenses necessarily incurred by himself while acting as executor of said supposed will, and until the suit about its validity had terminated.”
    If the litigation, on the one side or the other of which these costs, &c., have been incurred, was carried on by the plaintiff in good faith, solely with a view to maintain the purposes of the deceased as to the disposition of his property, or, at least, what he had sufficient reason to believe were his purposes, he was doing only what his supposed fiduciary relation exacted of him, and the expenses of such litigation ought to fall upon the general estate. Ilillam vs. Wallcer, 1 Uagg. 71, 3 Eng. Eccl. Rep. 30 ; Buller vs. Jennings, 8 Rich. Eq. 87; McClelland vs. Hetherington, 10 Rich. Eq. 202.
    The circumstance that he had a personal interest coincident with his official duty would not, of itself, deprive him of the benefit of this rule. If, however, on the contrary, the plaintiff was setting up a paper which, as he knew, did not express the free wishes of the deceased, but had, by the practice of deception or undue influence, been procured for his own profit, in fraud of those who were the objects of natural affection, and but for his interference would have been of testamentary bounty, and, pursuing his unjust purpose through all the forms of the law, was seeking to sanctify it by the judgment of the Court, he ought to pay the costs of such a speculation in the fallibility of human tribunals.
    George Wright was, at the execution of this paper, more than eighty years old, and had already begun to show, both in mind and body, signs of the imbecility which is incident to such advanced age. His four children were deaf, dumb, nearly blind, and of feeble intellect, and his grandchildren were infants, poor, and dependent on the tender mercies of a stepfather. The condition, therefore, of his own issue, was such as might well appeal to the charity even of a stranger. The plaintiff, a neighbor in whom he had peculiar confidence, and who, therefore, had more than ordinary influence over him, himself wrote this alleged will. When the old man would give his property to his son Leander, the more intelligent of the two, the plaintiff interposed, and, at his instance, Eobert, almost an idiot, was substituted. “Leander,” it was said, “might spend it,” especially with the aid of his wife, who was extravagant, and then the ultimate beneficiary would be the loser. When he would provide for his helpless grandchildren, the plaintiff interposed again, and reminded him that their father had received already more than his fair share. But that was not a reason for withholding the ultimate disposition from them to give to a stranger. The four children are allowed a support out of the estate during the life of Eobert, and, at his death, all the property, his six negroes, his plantation, his mill, and his stock, are placed at the disposal and management of the plaintiff. It does not appear that this paper, which represents George Wright so forgetful of the fruit of his own loins, so bountiful towards a stranger who did not need his charity, was ever read to him, or that he was, in any way, made acquainted with its disposition. He seems, however, to have known that he had made no provision for those grandchildren, who, he remembers, had shared in the tender «are of his aged wife, and, troubled at this omission, he sent for the plaintiff but the plaintiff would not come. When, in order to secure the decree of the Ordinary, it was necessary that the plaintiff should renounce all personal benefit under the alleged will, it is observable that the paper, executed for this purpose, declares no trust beyond the lives of the four children. There is, indeed, & promise that the power of disposition will not be exercised in favor of himself or his heirs. Who would enforce that promise ? Who would have such interest in it as could move a Court to act? The Court of Appeals in law, in affirming the verdict of the jury in the Common Pleas against the testamentary validity of this paper, rests the judgment on the ground, that the circumstances are such as to induce a strong suspicion of undue influence exerted by this plaintiff, and, therefore, to require evidence, which had not been furnished, that the deceased was acquainted with the contents of the paper.
    It appears to this Court 'that the present is not a case in which one, supposing himself rightfully executor, ought to be reimbursed out of the assets of the deceased for the costs and expenses which he has incurred in his unsuccessful attempt to set up and establish a supposed will. And it is, therefore, ordered and decreed, that the injunction be dissolved and the bill dismissed.
    ■ The complainant appealed, and now moved this Court to reverse the decree, on the grounds :
    1. Because, as the Ordinary of York District had admitted to probate, both in common and solemn form, the paper propounded by the complainant as the last will and testament of George Wright, deceased, the costs, fees, and expenses, incurred by the complainant as executor of said supposed will in sustaining said judgments of the Ordinary, should be allowed to him out of the estate of said deceased.
    2. Because, when said expenses were incurred, the complainant had no such interest in the estate of George Wright as stated by the Chancellor; and even if he had, it is submitted that the expenses of maintaining and defending the will as admitted to probate, and his title as executor, were properly and necessarily incurred, must be referred to his fiduciary relation, and should be allowed out of the estate of said deceased.
    3. Because there was no proof of any fraud or unfair dealing on the part of the complainant.
    
      4. Because the injunction granted by the Commissioner, and set aside by the Chancellor, should be made perpetual, and the administrator of George Wright ordered to account to complainant for all sums properly and necessarily incurred and expended by him, as executor of said supposed will.
    
      Williams, for appellant.
    
      Smith, contra.
   The opinion of the Court was delivered- by

O’Neall, C. J.

It seems to me that the rule settled by the Court of Equity in Butler vs. Jennings, 8 Rich. Eq. 91, is decisive of this case. The Court there say: So long as the judgment of the Ordinary remained unreversed, the executor was entitled to be reimbursed all the necessary expenses incurred by him in sustaining the judgment.”

The Ordinary had, both in common and solemn form, admitted the will to probate. His judgment stood unreversed until after the trial at law.

The verdict, on a very doubtful state of facts, found against the will, and was allowed to stand more as a finding upon the facts than any thing else. The defendant was right in attempting to sustain the will. The allegations of fraud in the bill, on the part of the executor, are, I think, altogether unsustained. When the verdict was found against the will, he had discharged his duty; and costs incurred after that must be charged upon him.

But I think he ought to be allowed all his costs until after the verdict was rendered. It is therefore ordered that the Chancellor’s decree, dissolving the injunction and dismissing the bill, be reversed; and that the Commissioner do ascertain and report the costs of the complainant to the rendition of the verdict, and that the amount thereof be reimbursed to him out of the testator’s estate.

Wardlaw, J., concurred.

Decree reversed.  