
    In re Estate of Frank Hentges. Katherine McDaniel et al., appellants, v. Peter Hansen, Executor, appellee.
    Filed February 10, 1910.
    No. 15,911.
    Executors and Administrators: Accounting: Attorney’s Fees. An executor should ordinarily be credited in his final account with the estate for reasonable attorney fees paid by him in proceedings to probate the will of his testator.
    Appeal from the district court for Platte county: George H. Thomas, Judge.
    
      Affirmed.
    
    
      J. H. Barry, for appellants.
    
      J. J. Sullivan and A. II. Briggs, contra.
    
   Root, J.

This is an appeal prosecuted by certain legatees of Frank Hentges, deceased, from an order of the district court allowing the executor credit for attorney fees.

There is but little substantial conflict in the evidence, and, in so far as the witnesses disagree, we should solve the doubts in favor of the judgment. It appears that the testator departed this life possessed of property worth' about $4,000, and survived by eight children and one grandchild. In April,k 1906, an instrument purporting to be his last will and testament was presented for probate to the county judge of Platte county by Mrs. Gorgen, his daughter and a legatee. In that document the testator bequeathed to Mrs. Gorgen two-ninths of his estate, and the remainder “was divided in equal shares among the grandchild and six children. Five of these children contested the probate of said will because of the alleged mental incapacity of their father, and prevailed in the county court, but on appeal to the district court a jury-found in favor of the proponent. The executors named in the will, five days subsequent to the day Mrs. Gorgen petitioned for the probate thereof, filed a written declination to accept said office, but thereafter Mr. Hansen, one of the executors, withdrew his declination, subsequently qualified and acted as executor. In his final report the executor charged the estate for money paid by him to attorneys for services rendered in probating the will. The contestants objected to the charges as unlawful. In argument they insist that the executor had no interest in probating the will and that Mrs. Gorgen, the proponent, should pay these fees. Judge Briggs appeared in the county court and in the district court for the proponent, and testified that he did so at the request of the executor and the proponent. Judge Sullivan first appeared in the district court, and testifies that he was employed by the executor. The executor was called by the contestants, and testified that he had nothing to do with employing counsel until after he was appointed executor. If he used the word appointed to designate the date he qualified as executor, he flatly contradicts his counsel. If he referred to the execution of the will, the date he was nominated or appointed by the testator, there is no contradiction. In the absence of explanation arid in view of the finding of the district court, we shall adopt the latter construction. Both attorneys rendered the ordinary professional services incident to the administration of an estate subsequent to the probate of the will. The county judge disallowed part of the executor’s charge for attorney fees, but the district court on appeal found the fees were reasonable and a proper expense of administering the estate.

Counsel for appellants in a persuasive brief and forcible argument at the bar asserts that the executor should only be allowed credit for money necessarily expended by him in payment of attorney fees for services rendered subsequent to his qualification as executor. The precise point involved herein has not been determined by this court. Sections 5002, 5003, 5004 and 5005, Ann. St. 1909, are as follows:

“Section 5002. Every person named as executor in any will shall, within thirty days after the death of the testator, or within thirty days after he has knowledge that he is named executor, if he obtains such knowledge after the death of the testator, present such will to the probate court, which has jurisdiction of the case, unless the will shall have been otherwise deposited with the judge of probate, and shall, within the period above mentioned, signify to the court his acceptance of the trust, or make known in writing to such court his refusal to accept it.
“Section 5003. Every person who shall neglect to perform any of the duties required in the last two preceding sections, without reasonable cause, shall be guilty of a misdemeanor, and shall be liable to each and every person interested in such will, for the damages which each person may sustain thereby.
“Section 5004. If any person having the custody of any will after the death of the testator shall, without reasonable cause, neglect to deliver the same to the probate court having jurisdiction of it, after he shall have been duly notified by such court for that purpose, he may be committed to the jail of the county by warrant issued by such court, and there be kept in close confinement until he shall deliver the will as above directed.
“Section 5005. When any will shall have been delivered into or deposited in any probate court having jurisdiction of the same, such court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the .will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this state as the judge shall direct, three weeks successively, previous to the time appointed, and no will shall be proved until notice shall be given as herein provided.”

By section 5017 all of the estate of a testator is made liable for the expense of administration as well as for the satisfaction of his debts and the support of his family. Section 5148 provides that an executor or administrator shall he allowed all necessary expenses in the care, settlement and management of the estate.

In Clark v. Turner, 50 Neb. 290, Mr. Commissioner Irvine argues that the statute commands an executor, after knowledge that he has been nominated as executor of a will and that the testator had departed this life, to present the will for probate or renounce the trust. Whether the executor, if he does not resign, is charged with an imperative duty of propounding his testator’s will is not involved in this cáse, and was- not necessarily presented in Clark v. Turner, supra. Independently of such a construction of the statute, we are of opinion that the executor has the poiver to request probate of his testator’s will, and in some instances it may be his duty to do so. 3 Redfield, Law of Wills (3d ed.) p. 8; Henderson v. Simmons, 33 Ala. 291; Phillips’ Ex’r v. Phillips’ Adm’r, 81 Ky. 328; Meeker v. Meeker, 74 Ia. 352; Lassiter v. Travis, 98 Tenn. 330. If a legatee petitions for the probate of his testator’s will, the executor may ordinarily discharge his duty by awaiting the outcome of that application provided he has complied with the statute, supra, but he may lawfully combine with the legatee for the purpose of advancing the expressed wiil of the deceased. In the last named event, his reasonable counsel fees incurred in establishing the will are expenses of administration to be paid from the assets of the estate, unless he acted in bad faith. Phillips’ Ex’r v. Phillips’ Adm’r, Meeker v. Meeker and Lassiter v. Travis, supra; Succession of Heffner, 49 La. Ann. 407; Hazard v. Engs, 14 R. I. 5.

Appellants’ counsel contends that we are committed to. a contrary doctrine, but we do not agree with him. In Mathis v. Pitman, 32 Neb. 191, a defeated contestant of a will recovered his costs and attorney fees. In Seebrock v. Fedawa, 33 Neb. 413, an heir of the deceased was reimbursed from the assets of the estate for counsel fees and costs incurred in an unsuccessful contest of her father’s ydll, The equities seemed strong in favor of the contestants in tlie cited cases and their good faith in waging the contest Avas undoubted. In McClary v. Stull, 44 Neb. 175, attorneys for discomfited contestants of a Avill requested that their fees should be paid from the assets of the estate. It appeared from the record that tlieir fees Avere contingent, and Ave held they had no just claim against the estate for compensation. In Clark v. Turner, supra, counsel for a vanquished proponent of an alleged lost Avill moved the district court in proceedings there pending on appeal for the probate of said will for counsel fees. The prayer Avas denied because the district court had no authority in that proceeding to direct payment of the assets of the estate for a purpose which, if legitimate, constituted an expense of administration.

In Wallace v. Sheldon, 56 Neb. 55, costs and attorney fees had been taxed in favor of defeated contestants of a will, and Ave'held the order erroneous. Mathis v. Pitman and Seebrock v. Fedawa, supra, Avere disapproved. It will be noticed that the learned commissioner Avriting the opinion of the court in Wallace v. Sheldon expressly disclaims committing us to a rule that under no circumstances may costs or attorney fees be alloAved an unsuccessful contestant in proceedings to probate a proposed Avill. In Atkinson & Doty v. May’s Estate, 57 Neb. 137, attorneys employed by a legatee to secure the probate of an alleged Avill failed in their mission. Subsequently they filed a claim for fees against the estate, and were defeated in the loAver courts. We affirmed the judgment. In St. James Orphan Asylum v. McDonald, 76 Neb. 630, following Atkinson & Doty v. May’s Estate, supra, we held that ordinarily the estate of a decedent would not be held liable for attorney fees for services rendered at the request of a legatee. The facts in that case disclosed that the equities were in favor of the defeated contestant. In re Donges’ Estate, 103 Wis. 497, is cited with approval by Judge Barnes in his opinion in St. James Orphan Asylum v. McDonald. In the Wisconsin case Mr. Justice Dodge correctly reasons that taxable costs must be taxed aqcording to statute, and that contending legatees ought not to he reimbursed from the assets of the estate for counsel fees paid by them;- but the learned jurist states that what he has said does not refer to the allowance of counsel fees reasonably incurred by an executor in the good faith performance of his duties. Judge Barnes carefully discriminates between counsel fees paid by an executor and like fees expended by a legatee. In re Estate of Wilson, 83 Neb. 252, an attorney had been appointed administrator of an estate. Subsequently interested parties sought to probate an alleged lost will wherein he was named as executor. The heirs contested this application. The administrator was a witness in the suit and attended court during the trial. The will was not established, and he was not permitted to collect an attorney fee for the time he devoted to that case. He had not been employed by either side to the controversy, and while it ivas pending was acting as an officer of the court. In Smullin v. Wharton, 83 Neb. 346, counsel fees Avere allowed by agreement of parties.

In the instant case attorneys are not pursuing the estate for compensation, nor is a legatee under the will demanding reimbusement for money paid counsel, but the executor has paid for legal services rendered, as he asserts, in the administration of the estate. No charge of bad faith is made, but his power to create the liability is challenged. In giving the executor credit for counsel fees, the county court must have found that the employment was necessary, although he concluded too much' had been paid for the services rendered. The effect of the judgment of the district court on appeal is that the necessity existed, and the charges Avere reasonable. It may be that the executor would have exercised better judgment had he permitted the contending heirs to litigate the validity of the will, but he was not compelled to do so, nor does the record suggest bad faith on his part in casting the weight of his influence and authority into the balance in favor of the proponent. The estate is not great, and the fees, while not excessive, form no inconsiderable part of the cost of administration, but the contestants, by attempting to defeat the will of their father, are responsible for that expense.

A consideration of the record and the arguments of counsel impel us to affirm the judgment of the district court.

Affirmed.  