Butler v. Bocock , 160 Ill. App. 501 ( 1911 )

Mr. Justice Thompson

delivered the opinion of the court.

The items in the report of the administrator with the will annexed objected to, and to which objections were overruled, relate to sums paid or liabilities incurred by the administrator with the will annexed, for the services of counsel in defending the suit to contest the will, and to the fees allowed to the guardian ad litem in the Circuit Court, and to witness fees and expenses incurred in that suit. No question is raised as to the reasonableness of any of such charges, fees or expenses. Appellants’ only contentions are (1) that an executor or administrator who defends a will contest unsuccessfully, must, himself, bear all the expenses of the litigation, including solicitor’s fees, witness fees, costs and other expenses; (2) that the decree in the will contest, that the defendants pay the costs, is decisive against the administrator with the will annexed.

An administrator with the will annexed succeeds to the duties and powers of the executor which result from the nature of his office as executor but not to those in the nature of a personal trust or confidence.. Penn, Trustee, v. Fogler, 182 Ill. 76; Hall v. Irwin, 2 Gilm. 176; Leslie v. Moser, 163 Ill. 502; 1 Williams on Executors, 563; 1 Woerner on Administrators, 178. We regard the rule in this state as well settled that it is the duty of an executor and also of an administrator with the will annexed to defend the will in the first court where it is assailed, and he must defend the will until it is once adjudged that it is invalid. He is a necessary party to such suit in his representative capacity. It is his duty to defend the will. If he acts in good faith and not from motives of personal interest, or in the interest of part of the devisees, and is not charged with fraud or undue influence in procuring the will, then the costs and reasonable expenses incurred in making such defense should be borne by the estate. Pingree v. Jones, 80 Ill. 177; Godfrey v. Phillips, 209 Ill. 591. Upon an examination of the cases cited as holding otherwise and modifying to a certain extent the rule announced in the Pingree case, it will appear that expenses and costs have only been taxed against executors, when they prosecuted will contests after the will had been set aside in a trial court, or where the executors were charged with bad faith or had a personal interest to defend. In such cases the courts properly refuse to make an allowance for their costs and expenses. If, however, in the first court there is a decree setting aside the will, and the executor appeals to a higher court, he takes the risk of the costs and expenses of the additional litigation, and if he is unsuccessful he must personally pay that additional cost and expenses. In the case at bar all the devisees except the contestant were minors. There was no interested defendant legally capable to indemnify the administrator with the will annexed. If an administrator with the will annexed or an executor, notwithstanding his legal duty, is not authorized to employ counsel at the expense of the estate to defend the trust, and the court cannot tax a guardian ad litem fee against the estate, the result is that the purported will of the testator concerning the disposition of his estate cannot have a reasonable defense, but must depend on a volunteer for its defense. There is no claim of bad faith on the part of the administrator, and no good reason appears why the estate should not pay the costs and expenses of the will contest. The will having been admitted to probate the reasonable rule is that the estate should pay the costs and reasonable expenses in the first court in which a contest is made.

The second contention of appellant is that the decree that the defendants in the will contest pay the guardian ad litem fee and the costs, is decisive against appellee. The guardian ad litem fee is a part of the costs. The decree is not against Cyrus Bocock personally, but is against him in his representative capacity. The decree, being against ‘ ‘ Cyrus Bocock, administrator with the will annexed,” is a decree against the estate for costs. Nothing in the decree indicates that he is required to pay the costs personally.

It is also contended that the court erred in refusing to pass upon certain propositions of law submitted by appellant. In a proceeding to contest an administrator’s report the parties are not entitled to a trial by jury, and the presentation of propositions of law in such a case is not proper. Martin v. Martin, 170 Ill. 18; Herman v. Pardridge, 79 Ill. 471; Kempton v. Funk, 139 Ill. App. 387. The court did not err in refusing to pass on the propositions. Finding no error the judgment is affirmed.

Affirmed.