
    Case 86 — PETITION EQUIT V
    October 16.
    Taylor, &c., v. Minor, &c.
    APPEAL FROM MARION CIRCUIT COURT.
    1. Costs of Contest of Will. — The successful contestant of a will is not entitled to have the extraordinary costs of the contest jiaid out of the estate where the contest was for his benefit alone, the portions of the other heirs being diminished by the rejection of the will.
    • 2. Same. — Where the nominated executor in a will, in good faith and upon reasonable grounds, has endeavored to probate it, be is entitled to have any extraordinary expense, such as his attorney’s fees and other incidental costs, paid out of the estate, although the will was rejected. But where one merely as devisee or as curatrix of the estate of a decedent attempts to set up a will, which is rejected, he is not entitled to have the expense of the litigation paid out of the estate.
    3. Costs of Suit to Surcharge Settlement of Administrator.— Where one of several distributees of an estate has succeeded in a suit to surcharge a settlement made by the administrator, and the correction of the settlement has inured to the benefit of all the distributees, he is entitled to have his attorney’s fees paid out of the estate. But the expenses of the administrator in defending such a suit having been incurred in endeavoring to protect his own interest, he is not entitled to have them paid out of the estate.
    
      ■4. Interest. — The curatrix of the estate of a decedent should not be charged with interest upon money of the estate .which was in bank to her credit and ready for distribution pending a contest over the will of the decedent, if, in tact, she received no interest upon this portion of the estate during that period.
    W. B. HARRISON for appellants.
    1. The judgment in the will case is conclusive as to the costs of that litigation.
    '2. The expenses allowed appellees in this case were incurred for their own personal benefit, and not to uphold, hut to defeat the will. They should not, therefore, be paid -out of the estate.
    3. The curatrix ought not to pay interest on the funds while in bank, nor after she was ordered to collect and hold the same for distribution, unless she received interest,,or could reasonably have obtained it.
    •SAMUEL AVRITT for appellees.
    "1. The heirs were joint tenants,,or tenants in common of the estate, and those who reap the benefit of Minor’s contest, must help to pay the expenses. These expenses embrace all reasonable attorneys and other incidental expenses necessarily incurred in the litigation. (Thirhvoll v. Campbell, 11 Bush, 163.)
    2. Appellant is not entitled to the allowance of the several items paid by her as attorney’s foes for services rendered either in this case or in the will suit, as she was the principal devisee, and it was in behalf of her own private interest that she carried on the litigation.
    . As to the duties of a curator, see Gen. Stats., chap. 39, art. 1, secs. 21 and 22.
    ¡3. The report and judgment are erroneous in not charging appellant with interest for the first two years on the amount of personalty in her hands.
   ■CHIEE JUSTICE HOLT

delivered the opinion of the court.

Bannister Taylor died in 1876, leaving a paper, pur-. porting to be liis will, executed • in 1844. It devised liis estate to liis widow,-the appellant, E. W. Taylor, for life, .or during lier widowhood; disinherited his •daughter, the appellee, Martha Minor, who had married J. C. Minor; provided that his widow, as his other children married or arrived at age, should give to each of them one thousand dollars as an advancement; but if any one of them married against her will, such child should have no part of his estate, and that upon the death of his widow or her remarriage his estate should, save in the event above named, pass to his children, save Martha; but if they died without children,, it was to pass to a certáin educational institution, which was named in the will. It nominated two persons as executors, but they never qualified. He had but two children beside Martha, one of whom died before he did, and the other after, both leaving children.

Whether, therefore, the paper purporting to be his will was upheld or not, his estate passed to the same persons, saving a difference in the rights of the widow,, and also if the writing were maintained as his will, the portions of the devisees under it were increased by Martha being disinherited. After being probated in the county court, Minor and wife assailed it, taking an appeal to the circuit court, where, after four mistrials, a finding was, upon a fifth trial, had against it. Upon an appeal to this court the judgment was. affirmed.

During the pendency of the litigation the appellant,. E. W. Taylor, was appointed curatrix of the estate, and when it ended she qualified as administratrix. As such representative she made a settlement in the county court of her accounts as curatrix, and while that settlement does not appear as a part of this record, yet she appears to have been credited in it with extraordinary costs or expenses incurred by her in the will litigation, such as 'moneys paid to an expert witness and lawyers’ fees.

Minor and wife obtained a judgment in the will' litigation for their ordinary cost, and collected it. Shortly after the ending of that litigation Minor and wife brought this action against the widow and other heirs, seeking to surcharge and correct the settlement made by Mrs. Taylor in the county court, and for a settlement and division of the estate. In it they also claimed reimbursement out of the estate for the extraordinary expenses they had incurred in the previous litigation. This included the fees of their attorneys; money paid to a distinguished physician as an expert witness; the cost of a continuance by them in that suit, and for which a judgment had been rendered therein; the charge of a person for taking down the evidence upon the various trials; also the amount of their personal expenses in attending to the litigation, such as hotel bills, &c.

Upon the other hand, the appellant, Mrs. Taylor, while she denied the right of Minor and wife to recover these claims out of the general estate, claimed that she was entitled out of it to the extraordinary costs she had incurred in the will litigation, such as her attorneys’ fees and money paid by her to another expert witness. The case was referred to a commissioner, who reported in favor of allowing all these claims, and the court, by the judgments now complained of, allowed them all out of the estate, and both sides are now complaining, the one by an appeal and the other by a cross appeal.

The court also allowed an attorney’s fee to each side in this case, to be paid out of the estate.

Yarious other grounds of complaint are presented by each side, but those above named are the ones mainly urged, and the most of the others will go unnoticed as unnecessary for our consideration.

It is claimed upon the side of the appellees that section 15, chapter 23, of the General Statutes, page 311, authorizes the allowance to them of their extraordinary expenses incurred in the will litigation. It provides: “In actions for the settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, if it shall be made to appear that one or more of the legatees, devisees, distributees or parties in interest have prosecuted for the benefit of others interested with themselves, and have been at trouble and expense in conducting the same, it shall be the duty of the court to allow such person or persons reasonable compensation for such trouble, and for necessary expenses, in addition to the fees and costs; said allowance to be paid out of -the funds recovered before distribution, the persons interested having notice of the application for such allowance.”

In our opinion, however, this provision does not embrace a case like this one. Where, however, one person has prosecuted an action at extra expense and trouble, and the recovery inures equally to the benefit of others, the chancellor may, in the exercise of his power to compel parties to do equity, require them, as a condition of sharing in it, to contribute their proper proportion of the expense, and may order it paid out of the common fund.

It is manifest, however, that such a case is not now presented. The will litigation was for the benefit of Mrs. Minor. Her success diminished the portions of the devisees named in the will, and their portions as heirs should not, therefore, be diminished by the payment of these extra expenses out of the estate, which were incurred for the benefit of Mrs. Minor alone.

Upon the other hand, the appellant, Mrs. Taylor, was merely a devisee and the curatrix. In the latter capacity it was her duty to collect and preserve the estate merely. She had no power as such to employ counsel in the attempt to set up a will and charge the estate with the expense. (Gen. Stats., chapter 39, art. 1, sec. 21.1

If she did so as a devisee, then equally she has no right to charge the estate, and this is true of any extraordinary expense or trouble incurred by her in that litigation, and it was error to make any allowance therefor out of the estate. If she had been nominated as executrix by the will, and in good faith and upon reasonable grounds had endeavored to probate it, thus complying with what the testator may be regarded as having asked, she would have been entitled to any extraordinary expense, such as her attorney’s fee and other incidental costs, attending such an effort; but only to this extent has this court gone, and it is far enough in our opinion. (Phillips’ Ex’r v. Phillips’ Adm’r, 81 Ky., 328.)

The allowance of a fee to the attorney of the appellees, Minor and wife, in this suit was proper. Mrs. Minor, by the breaking of the so-called will, had become a distributee of the estate. She, therefore, had a right to sue for its settlement, and in doing so to surcharge and correct the settlement which the administratrix had made of her accounts as curatrix. As it credited her by the extraordinary expenses incurred by her in the will litigation, it was erroneous; and this being so, we fail to see upon what ground an allowance should be made to Mrs. Taylor out of the estate to pay the fee of her attorney in this action. The distributee was not in fault in seeking to correct the settlement, and this expense upon the part of Mrs. Taylor has been incurred in endeavoring to uphold it and protect her own individual interest. While we doubt not she has acted throughout in good faith, yet this does not permit us to stretch the rule in her favor to such an extent as would generally prove unjust, and, indeed, be so in this instance.

This appeal is not so taken as to parties that we can consider .any question of overpayment to any of the heirs. Mrs. Taylor was given a credit in her county court settlement for insolvent debts of the estate: and in making up the account in this suit she appears to have been charged only with the balance found owing upon that settlement. She was properly credited as to the Purdem debt, owing to the estate, as the testimony shows that the obligors were, until the time of their failure, generally regarded as solvent.

It does not clearly appear from this record whether Mrs. Taylor has or has not been credited by all the taxes paid by her for the estate. The chancellor will, upon the return of the cause, re-examine the case, and in the future judgment allow any not heretofore credited. As curatrix she could not tell when the will litigation would end. She could not know when •she would be called upon to settle her accounts. She should, of course, be made to account, however, for any and all interest upon the funds of the estate which she in fact collected. She has been charged interest upon the money from two years after her qualification as curatrix. It appears that for a time a portion of the estate was in bank to her credit, and ready for distribution if the litigation had come to an end, and it had been ordered. If, during this period, she received no interest upon this portion of the estate, and she does not appear to have done so, it would not be equitable to charge her with it, and in the compu.tati.on of interest against lier slie should have credit to tliis extent.

We perceive no errors wbicb we can consider as between tbe parties to tbis appeal, save as above indicated. Upon a return of tbe canse tbe lower court will correct its proceedings as herein indicated, calling to its aid its commissioner, if it sees proper to do so, and tbe judgments appealed from are .reversed upon botb tbe main and cross appeals, and cause remanded, for further proceedings consistent with tbis opinion.  