Bradford v. Boudinot , 3 Wash. C. C. 122 ( 1811 )

WASHINGTON, Circuit Justice,

delivered the opinion of the court.

The defendant, having received letters testamentary upon a will regularly proved before a competent tribunal, was authorized to perform all those acts, which an executor has the general power to perform, notwithstanding the pendency of a litigation respecting the validity of the will. The 18th section of -the act² of this state of the 13th of April, 1791 [3 Laws (Pa.) 34],.sanctions all his acts pending the contest, unless where an administrator pendente lite is appointed; which, upon the refusal of the executor, to give security for the faithful execution of the will, the register is authorized to appoint. No such appointment was made in this case, nor does it appear that the defendant refused to give such security.

The defendant was not only authorized, but it was his duty, believing the first will to be the real last will and testament of William Bradford, (which he asserts in his answer he did,) to support the decision of the register in favour of that will; and he was entitled to the aid of the estate, to discharge all reasonable costs and expenses incurred on that account. Upon the same reason, he is entitled to the compensation usually allowed to an executor, for his pains and trouble in the management of the estate, whilst it remained in his hands. The allowance made by the commissioner for funeral expenses, is by no means deemed unreasonable. This is not a question, which in any respect affects creditors; and the whole sum allowed is but a trifle, when taken from the large amount of personal estate which is to be distributed. The exceptions, therefore, are overruled; it being understood that the parties have agreed to settle, amicably, the subjects included under the fourth and fifth exceptions.

2 The act is, “that no appeal from the register’s court, concerning the validity of a will, or right to administer, shall stay the proceedings, or prejudice the acts of an executor or administrator pending the same, if the executor shall give sufficient security for the faithful execution of the will;” but in case of refusal, the register is directed to appoint an administrator during the dispute, which shall suspend the power of the executor during that time.