In re Estate of Fry , 96 Mo. App. 208 ( 1902 )

SMITH, P. J.

It appears that Maria S. Fry departed this life at the county of Bates, first having made her last will by which she devised and bequeathed to her children, therein named, certain property and money of which she died possessed. By said will the defendant, Albertus Fry, was named the executor thereof. It was duly admitted to probate by the probate court of the county in which the testatrix died.

Later on, Elmira F. Flickinger, a daughter of the testatrix and legatee under the will, instituted in the circuit court, a proceeding against the other legatees therein named, including the executor, under section 4622, Revised Statutes 1899, to contest the validity of the said will. This proceeding resulted in the establishment of the will. The costs and expenses thereof, of which the following are the items:

Trip to Springfield, Depositions......$ 18 70

Paid E. H. Mackey................. 10 00

Depositions........................ 8 50

Judgment Flickinger vs. Fry........ 135 50

Attorneys’ Fee to Smith & Denton.... 150 00

were paid by the executor, and in his final settlement in the probate court he asked a credit therefor, and to the allowance of which Thomas J. Fry, one of the legatees, objected.

In the circuit court, where the controversy was removed by appeal, the objection to the allowance of such credits was sustained, and judgment given accordingly, and the executor appealed. The will of Mrs. Fry was finally probated, and the question now is, whether or not, after such probate, her estate can be made liable for the expenses incurred in the proceeding under the statute to contest the validity of such will.

The technical contest in such statutory proceeding is over the validity of the will, but the ultimate object— the real object — is to determine the rights of the parties to the property. The estate is neither increased nor diminished by the result, and the executor is only interested in seeing that the formal proof of the due execution of the will is made. As said by Judge Macfakiane in, In re Est. of Soulard, 141 Mo. loc. cit. 670: “I am unable to see any good reason why an executor should be required to assume the burden of litigation between the parties directly interested. The estate itself is not to be affected by the result and all parties interested in the property devised are parties to the suit.

‘ ‘ The contest being between the parties directly interested, they, and not the estate, should bear the expenses of the litigation. Any other rule might operate ruinously to estates, and is contrary to the manifest policy of our law. If the expense of the contestants is to be paid out of the estate, they would have nothing to lose and everything to gain by the contest. There would be no limit to the expense the parties might incur short of the value of the estate itself. The entire estate could, therefore, be swallowed up in the litigation, and the contestants, if successful, would reap a barren victory. A premium to contest the will would thus be given to the parties who might be displeased with the disposition the testator had made of his property. But few unsatisfactory wills would escape a contest. Under the statutes and laws of this State, a successful party to a suit is generally only entitled to his taxable costs as expenses, and no reason can be seen for a different rule in these cases. . . .

“It is true, generally speaking, that in case the will is established by the contest, it could make no particular difference whether the expenses of the parties maintaining the will were paid directly by the parties who claim under it, or out of the estate which they will ultimately receive. But that is not always so, as is illustrated by this case.”

The case from which we have just quoted is so analogous to this in its essential facts as to make what is said in that quotation of controlling influence in determining the issue in this. It is true, as defendant contends, that it was decided in Cash v. Lust, 142 Mo. loc. cit. 637, that one instituting a proceeding under the statute to contest a will can not be required to give security for costs, but notwithstanding this, we do not understand the rule declared in the Soulard case, in 141 Mo. already quoted, is overthrown by the ruling in Cash v.Lust. Theopinion in each casewaswritten by the same judge, and in the latter the former is referred to, and it may be inferred that if it had been intended by the latter to overthrow the ruling of the former in respect to the liability of estates for cost in such cases, it would have been so stated.

We appreciate the force of the reasoning- of the defendant’s counsel, but feel constrained to follow the ruling in the Soulard case, and so must approve the action of the trial court and affirm its judgment.

All concur.