
    The Executors of Thaddeus Andrews, deceased, v. His Administrators.
    An executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.
    The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense.
    Error to the court of common pleas of Portage county.
    Be-served in the district court.
    This case is submitted on the following agreed statement of facts, signed by counsel for the parties :
    On the 5th day of July, a. d. 1844, Thaddeus Andrews, of Portage county, made his last will and testament, substantially disinheriting his children, and bequeathing almost his entire property to the trustees of the Western Eeserve College, the Home Missionary Society, the Foreign Missionary Society, and the American Bible Society. He appointed Samuel B. Spelman and Zera Hinman the executors of his will.
    ^Thaddeus Andrews died on the 27th day of February, a. d. 1845; and on the 13th day of March, of that year, Spelman and Hinman proved said will, gave bond, and entered upon the discharge of their duties as executors thereof. On the 24th day of March, the executors commenced taking an inventory of the decedent’s property, which they returned into court on the 10th day of June, a. d. 1845.
    On the 19th day of April, A. D. 1845, Thaddeus R. Andrews- and others, children and heirs at law of the said Thaddeus Andrews, deceased, filed their bill in chancery against the said legatees-- and executors, to set aside said will, upon the ground of undue influence, fraud, and imposition exercised over said testator, and' of his incapacity to make a will. A feigned- issue was ordered between the parties, which was first tried at the November term,. a. d. 1846, of the Portage common Pleas, and resulted in a verdict in favor of' the validity of the will; but which was subsequently tried at the September term of the Supreme Court in said county, a. n. 1848, and resulted in a verdict against the validity of the will. A motion was made by the defendants for a new trial, which was reserved for decision upon the circuit; and the motion was finally overruled at the November term, a. d. 1848, of the Supreme Court in Franklin county. Thereupon, in pursuance of said verdict, the-court entered a decree, the material part of which, so far as it relates to the question raised in this case, is in the following words: “That the said paper writing in the pleadings mentioned, is not. the valid last will and testament of the said Thaddeus Andrews, deceased, and the same is hereby decreed to be utterly .void; and the court do further order, adjudge, and decree that the said parties, respectively, pay one-half of the costs to be taxed, by the first day of May next, and that, in default of such payment, execution-issue therefor as upon judgments at law.” One-half of the costa taxed to each party was $194.35.
    On the 28th day of March, a. d. 1849, and dui-ing the March term of the court of common pleas of Portage county, Romania N. Andrews and Joshua T. Catlin were duly appointed administrators of the estate of Thaddeus Andrews, deceased, and immediately ^entered upon the duties of their appointment. On the next succeeding day Spelman and Hinman filed their administra•tion account. This account contained several items expended in ¡upholding said will, amounting to the sum of $699.81, and which were charged to the estate of the decedent, and deducted by them from the assets in their hands as executors under said will. On the 29th day of May, a. d. 1849, the aforesaid administrators filed ■exceptions to all said items. These exceptions were continued from time to time, until the matter passed from the jurisdiction of the court of common pleas to that of the probate judge, who, on hearing, sustained said exceptions. From his decision, Spelman and Hinman appealed to the court of common pleas of Portage county, which also sustained said exceptions. From thence it was taken to this (district) court, by petition in error.
    It is agreed, that if the expenses incurred by executors under a will, to uphold the same against the heirs at law, which substantially •disinherits said heirs and bequeaths the estate of the decedent to •strangers, and which was set aside upon the ground of undue influence, fraud,- and imposition exercised over the testator, and of his incapacity to make a will, as hereinbefore set forth, are legally ■chargeable to the estate of the decedent, then said exceptions shall be dismissed; but if said expenses are not legally chargeable to the •estate of said decedent, then said exceptions shall be sustained, and a judgment shall be entered in favor of said Romanía N. Andrews .and Joshua T. Catlin, as administrators of Thaddeus Andrews, deceased, against the said Samuel B. Spelman and Zerah Hinman, for ■said sum of $699.81, with interest thereon from the 29th day of March, A. d. 1849, together with all costs made since the filing of •said settlement account.
    Exception No. 16, to the payment of $350 to Cornelius Austin, is not embraced within the foregoing agreement; but if judgment ■shall be rendered in favor of the foregoing administrators, that payment shall be considered as subject to the decree of the court of ■common pleas made in this case in relation thereto.
    It is agreed that the foregoing statement of facts shall be substituted *for the various records and exhibits referred to in the bill of exceptions filed in this case.
    
      J. L. Banney, for the plaintiffs in error.
    1. An executor, under the laws of Ohio, derives his authority to act from both the will and the probate of it, for it takes both to make the will valid. In the matter of Last Will of Capman, etc., 6 Ohio, 67; Baily v. Baily et al., 8 Ohio, 239; Moore v. Tanner, 5 Mon. 42; Swazey v. Blackman, 8 Ohio, 5; Hall v. Ashley, 9 Ohio, 96; Wilson v. Tappan, 6 Ohio. Ohio, 80; King v. Bullock, 9 Dana, 41; Herrington v. Herrington, Walker, 322; Tucker v. Starks, Brayt. 99; Cleveland v. Chandler, 3 Stew. 489; Patten v. Tallman, 27 Maine (14 Shep.), 17; Singleton v. Singleton, 8 B. Mon. 340. So also as to capacity, etc., of testator. 8 N. H. 124; Sawyer v. Dozier, 5 Ired. 97; Patton v. Allison, 7 Humph. 320.
    So long then as the probate continues, it is conclusive, and imposes on the executor the position of legal trustee, enforcing upon him the duty of faithfully protecting the trust, and of carrying out the provisions of the will. Executors, upon general principles, are trustees, and necessary parties, when the trust or will is sought to be affected. 1 Story’s Eq. 547, 548, 553; 2 Ib. 1058, 1067; Story’s Eq. Pl. 148, 150, 161.
    If the determination of the court in admitting the will to probate is conclusive, until the will by another proceeding is overturned, it follows that, until decree in such proceedings, it is in law a valid will, and the executor is bound to defend it, for he can not know inadvance what the result of the proceeding will finally be.
    2. In such case, the executor acts as trustee for the testator’s entire estate, as well as for the devisees and legatees; and also as a trustee of the court in respect to all of these several interests, for the executor is liable to all for the manner in which he discharges the trust.
    3. It is by law the duty of trustees to defend the trust when attacked, and they are entitled to be allowed, out of the trust fund, necessary costs and expenses in such defense; and such *eosts and expenses incurred may be retained by them from the trust funds in their hands; and in case of executors, even though the will be subsequently set aside. Campton v. Barnes, 4 Gill (cited in 10 U. S. Ann. Dig. 225, sec. 116); 1 Sup. U. S. Dig. 835, see. 1033; 2 Story’s Eq., sec. 1275; 1 Sup. U. S. Dig. 795, sec. 104; Ib. 794, secs. 96, 97; 2 U. S. Dig. 361, sec. 43; Johns v. Tate, 7 Humph. 388 (cited in 2 U. S. Ann. Dig. 186, sec. 66); Sterrett’s Appeal, 2 Penn. 419; Murray v. De Rottenham, 6 Johns. 52; Moses et al. v. Murgatroid, 1 Johns. 473; Nimmo v. Commonwealth, 4 H. & M. 57; Robert v. Ditmas, 7 Wend. 522; Scott’s Estate, 9 Watts and Serg. 98; Davis v. Rawlins, 2 Harring. 125; Jones v. Stockett, 2 Bland; Attorney-General v. Mayor of Norwich, 2 Myl. & Craig, 446; Taylor v. Glanville, 3 Madd. 176.
    This principle is also recognized in our own state. Ohio v. Guilford et al., 18 Ohio, 500; Gilbert v. Sutliff, 3 Ohio St. 129.
    The case of Noyes v. Blakeman, 2 Seld. 567, would seem to be decisive on these points,
    
      W. S. G. Otis, for defendants in error:
    An executor derives his power from the will of the decedent, and' not from the probate. Hence there are many acts, by the common-law, which an executor may do before probate of the will.
    In short, an executor at common law, is as completo executor before, as. after, probate of the will, so far as relatos to tho extent of his power over the estate of the testator.
    The administrator derives his power solely from the letters of administration, and, as a consequence, ho can do no act until the-letters are granted him.
    The very obvious distinction, then, between the probate of a will, and the granting of letters of administration, is briefly this: The-probate authenticates a power previously conferred; the grant of letters confers a power not previously possessed.
    Acts done under a, void authority are themselyes void. Still it has long been the law in England, in order to prevent circuity of ^actions, to allow an administrator, who has acted under a void authority, when sued by the executor or rightful administrator, to recoup the funeral expenses and debts which he has paid in the damages which may be recovered against him. This recoupment extends to such items as the executor or rightful administrator would be compelled to pay, and to none others.
    A forged will, the will of a person who is incompetent by law to make a will, and a will procured by fraud and imposition exercised over a person competent by law to make a will, are void" instruments; and the probate of such wills confers no curative power upon them. It is the office of the probate, as before stated, to authenticate valid acts, not to heal void ones. All acts done under such wills are also void; still an executor who has acted under a void will, like an administrator who has acted under a void administration, is allowed, in a suit against hing to recoup the funeral expenses and debts paid by him, and for the same reason.
    Acts of administration, technically speaking, are the payment -of funeral expenses and the collection and payment of debts. All these acts are upheld whether done under a void will or a void administration, for the reason that they are the very acts which the rightful executor and administrator are reguired to do, and the •parties who are entitled to the estate of the decedent receive the benefit of them. But the payment of the distributive shares to the heirs at. law, and of legacies to legatees, and the sale and conveyance of real estate, are not, technically speaking, acts of administration, and are not upheld at common law. These acts depend for their validity upon .the validity of the power or authority under which they are done, and become void on the revocation of that power or authority, unless upheld by legislative enactment. . It is only necessary to state the proposition, in order to give it an immediate assent, that the payment of legacies under a forged or •otherwise void will to the legatees named therein to the exclusion of the heirs at law, is not only a fraud upon the heirs, but an act which the rightful administrator could not perform. How much more fraudulent and unauthorized is it, to setup such a will against the heirs who are struggling *to set it aside, and then, after •defeat, attempt to charge the expense of such effort over to those against whom the fraud was directed? The proposition is monstrous, and can not be tolerated; for it is nothing less than compelling a person to pay the expense of an unjust attack upon his rights of property.
    The foregoing positions rest not only upon the solid basis of reason, but also upon an unbroken series of English authorities from .an early period down to the present time. A few of these authoi’ities we cite: 2 Coke (Thomas & Eraser’s ed.), 55, n A and B.; 57, n. A; 5 Ib. 66, n. C, 68; 3 Bac. Abr., art. “Executors and Administrators,” letter “ E,” 477, sec. 14; 475, secs. 12, 13; 467, sec. 9; 2 Bla. Com. 507; 7 E. C. L. 249; Bailey, J., 6 E. C. L. 316; Toller’s Executors, book 1, ch. 2, secs. 4, 10; ch. 3, secs. 3, 8; Lovelass on Wills, 25 Law Library, 2, 19, 20, 21, 54, 204, 205.
    The rules of the common law relative to executors and administrators have always obtained in Ohio and her sister states, except so far as they may have been abrogated or modified by legislative enactment; and the material points raised in this case, and decisive of the entire controversy in favor of the defendants in error, have been directly passed upon by some of the courts of our sister ■states. Brown v. Vinyard, 1 Bail. Ch. 460; Mumper’s Appeal, 3 Watts & Serg. 441; Scott’s Estate, 9 Watts & Serg. 98; Roger’s Appeal, 13 Penn. St. 569; Wood v. Nelson, 10 B. Mon. 229; Heister’s Appeal, 7 Penn. St. 455; Villard v. Robert, 1 Strobh. Eq. 369; Deitrick’s Appeal, 2 Watts, 332; Koppenheffer v. Isaacs, 7 Watts, 170; Poag v. Carroll, 1 Dudley (S. C.), 1; Garrett v. Garrett, 2 Strobh. Eq. 272.
    Notwithstanding the numerous modifications wrought in the law by the legislation of this state, the precise rule involved in the question submitted to the court in this case remains wholly unchanged. Unless the twenty-seventh section of the act of March-23, 1840, shall be held to reach it — which has hithei’to never been claimed, even by the counsel for the plaintiffs in error — no legislation has impaired this rule, and no reported decision has ever questioned its wisdom or its justice; and if it be ^claimed that there are circuit decisions of an opposite character, such decisions are ill advised and not law.
    The plaintiffs in error were mere formal parties to the contest, without any interest whatever in the event of the suit; nor do we-suppose it at all necessary that they should have been made parties to the record. Into such a controversy the plaintiffs in error were under no obligations, either legal Or moral, to enter, unless the legatees, who alone were interested in upholding the disputed will, would indemnify them against the costs and expenses of the contest.
   Brinkerhoft, J.,

delivered the opinion of the court.

The question presented in this agreed statement, depends, it seems to us, on the answer to be given to a further inquiry, to wit: Is an executor or administrator with the will annexed, ex officio in duty hound to maintain against the heirs at law a contest as to the validity of the will which he has undertaken to execute? If he be thus bound; if it be a duty which the law casts upon him in the administration of his trust: then it follows that the expenses fairly incurred by him in such contest must be payable out of the trust estate, whatever may be the consequences to the successful contestant. The idea that the law should imperiously thrust an onerous duty upon a trustee having, in general, no personal interest in the existence of the trust, and make him personally responsible for the expenses necessarily accruing in the discharge of that duty, is wholly inadmissible. Considerations of public policy suffi-cient to overbear all incidental private inconvenience and private-interest, would forbid it; for if it were otherwise, a prudent man-would seldom consent to undertake the office of executor, where-there was the remotest prospect of a contest of the will; and the statutory right to dispose of property by will would become, to a great extent, a dead letter for the want of suitable persons willing to assume the risks of its execution.

But, is there any such duty resting on an executor? Certainly no such duty is imposed by express statute, for our statutes are silent on the subject.

*The statute under which the will in this case was contested, provides that the mode of contesting a will shall be by bill in chancery, in which an issue shall be made up, whether the writing produced be the last will of the testator or not, which shall be tried by a jury. The statute does not prescribe who shall be made parties defendant to the bill in chancery; but, proceeding in analogy to ordinary eases in chancery, wo believe it has been the general, and perhaps uniform practice, to make the executors, as well as legatees and devisees, and heirs at law who are not complainants, parties defendant. And granting the propriety, and even the necessity, of this practice, it does not follow, so far as we are able to discover, that the executor is therefore bound to take upon himself the burden of the contest.

True, an executor is a trustee ; and it seems to be well settled that a trustee who has accepted a trust, is bound to defend the trust estate, and may, in consequence, charge upon it the proper expenses of such defense. 2 Story’s Eq., sec. 1275; Noyes v. Blakeman, 2 Seld. 567. But with the exception of an obiter dictum in John v. Tate, 7 Humph. 388, we find no authority to sustain the position that a party acting as trustee is bound to defend the relation of trustee whenever the rightful existence of that relation is assailed or called in question: although, should he do so, and do it succosssfully, it it seems he would, in that case, be entitled to charge his proper expenses against the trust estate; and this for the reason that his expenditure inures to the benefit of the cestui que trust. Scott’s Estate, 9 Watts & Serg. 98.

In the particular case of acting executor, we can see no good reason, on principle, why he should be held bound to assume the burden of defense in the contest of the will under which he acts. If the will so far divert the estate from the line of descent as to make it the interest of -the heir at law to contest the will, it follows that the legatees or devisees will, generally, have sufficient motive to induce them to assume the burdens of the other side of the contest. If the legatee or devisee be a minor, or feme covert, the husband or parent, or persons in loco parentis, will generally be willing to as-sumo the risks of litigation, where *such litigation would be proper in behalf .of their friends under disability. And finally, as an ultimate safeguard to persons interested in such contest and under disability, their rights are, by the terms of the statute, saved until the expiration of two years after the removal of such disability.

It seems to us, therefore, that the executor, in case of a contest of the will, may properly throw the burden of sustaining the contest on his co-defendants, the legatees or devisees; or if they require his active participation in the contest, he may exact from them such guaranties as will insure his safety. Such a course will always throw the expenses of the contest upon those for whose benefit it is to be maintained; while, on the other hand, to hold the executor bound to maintain the contest, and, therefore, to allow him to charge its expenses against the estate in cases where the will is found to be invalid, results in the obvious and gross injustice of exonerating from the burdens of the contest those who alone had an interest in maintaining it, and who are adjudged to have been in the wrong, and casting the whole expense of a proceeding, alike against their rights and their interests, upon the innocent heirs at law.

And it would unwisely encourage the setting up of pretended wills, if the expenses of the attempt could, in case of failure, bo cast upon the heir at law. The game, in the hands of the pretended legatee or devisee, would be one which, while it afforded a chance of winning; would involve no possibility of loss.

It would, it seems to us, so operate as frequently to despoil the estate for the sake of the relation, and sacrifice the substance of the thing to its incident; nevertheless, it was .so held on the circuit by Washington, J., in Bradford v. Boudinot, 3 Wash. C. C. 122, and in Compton v. Barnes, 4 Gill, 55; while the view which we have taken of the case is supported by Brown v. Vinyard, Bailey's Eq. 460; Mumper’s Appeal, 3 Watts & Serg. 441; and Royer’s Appeal, 13 Penn. St. 569; and the reasoning of the court in th'e two •cases last cited, and both of which are strictly in point 10 that under consideration, seems to us unanswerable and conclusive.

Against the authority of these cases in Pennsylvania, it is ^contended by counsel for plaintiff in error, that in Ohio the probate of the will'and the grant of letters testamentary are judicial acts, which remain valid and binding until they arc invalidated by the formal and successful contest of the will by bill in chancery; that in Pennsylvania, after probate of the will and the grant of letters testamentary in the register’s court, the further contest of the wiH must be by aj>peal to the Supreme Court; and that this appeal has the effect to vacate the probate, and letters had and granted in the register’s court; thus leaving the executor, pending the appeal, without authority to act.

To this position there seem to us to be two answers. 1. If, as we hold, the executor is not bound to assume the burden of maintaining the contest of the will, it can make no difference, as to the question in this case, whether the authority of the executor derived from the probate and letters testamentary remains in full force, or is suspended, during the pendency of the contest; and, 2. The •counsel, we think, is mistaken as to the law of Pennsylvania. The probate of a will and the grant of letters testamentary seem to be judicial acts there as well as here; and the statute of Pennsylvania provides that the appeal “ shall not suspend the power or prejudice the acts of the executor.” Purdon’s Dig. 865.

Judgment affirmed.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.  