Ross v. Hearn ( 1844 )

By the Court.

Booth, Chief Justice.

—The contest in reference to this will was so general on the issue of devisavit vel non, that the case had to be prepared on every ground. It was defended by three counsel, who were paid by the executor three hundred dollars each for this defence. We do not consider this an unreasonable fee, considering the magnitude of the contest, and the necessary preparation for, and labor in the defence.

Where the heir at law contests a will on reasonable grounds, he ought not to be charged with the costs, though he fail. A trustee is bound to defend his trust, and ought to be allowed all the reasonable charges, as well as costs, in making such defence. The executor was bound-to defend this will as executor. Whether interested or not as devisee, he had a plain duty as executor, and he must be allowed the means of making that defence effectual. The only question then is, whether the fees paid by the executor in this case are reasonable. This can only be judged of by reference to the case in hand—the questions raised by the pleadings, or which will admit of being raised, and the usual compensation for professional services. By these tests we consider the compensation paid in this case reasonable.

The decree of the register is, therefore, corrected as to the fee paid counsel. Decree affirmed as to the reviewer’s costs. We did not think the review taken on merely frivolous grounds, though it failed.