In Re Will of Hough , 120 Or. 223 ( 1926 )

The appeal involves the question of the force of the findings of facts made by the Circuit Court to the purport that the testator Alfred Hough was competent to make the will and the decree naming the instrument as the "last will and testament of Alfred Hough, deceased," or, in short, did the executrix have the right to defend the will by taking the appeals.

The will being declared the last will and testament of Alfred Hough, deceased, all of its valid provisions should be executed.

Section 1143, Or.L., provides that when a will has been admitted to probate, any person interested may, within one year, contest the validity of such will. Section 549, Or.L., provides that "any party to a judgment or decree * * may appeal therefrom."

In Re Young's Estate, 59 Or. 348, 361 (116 P. 95, 116 P. 1060, Ann. Cas. 1913B, 1310), this court, speaking through Mr. Justice McBRIDE, as recorded at page 361, said:

"If the proposed will is void, it is entirely void. It cannot be valid as to Caroline Phillips and void as to the other contestants. The probate court cannot permit administration on it as to her and refuse to permit administration as to the other contestants. Its only course is to refuse to have anything to do with it. Any one of the contestants might have appealed this suit and a victory for him would have resulted in a reversal of the decree of the court below, declaring the will a valid instrument, and when that decree is obtained the judgment for costs will fall with it."

In the case of In Re Crumbaker, 217 Ill. App. 411, it was held, as the syllabus reads, as follows:

"When a purported will has been set aside by the decree of a court having jurisdiction to enter it, the executor named therein may prosecute an appeal to the higher courts to test its validity, at the risk, however, of being himself held liable if the decree invalidating the will stands."

As a general rule a person named as executor in a will, and who is a party to the decree of the probate court, either refusing in the first instance to admit a will to probate, or a decree disallowing or setting aside a will which has previously been admitted to probate is such an interested or aggrieved party that he may prosecute an appeal from such a decree: Bell v. Davis,43 Okla. 221 (142 P. 1011, Ann. Cas. 1917C, 1075, and note at page 1079, citing numerous authorities). See, also, Woerner, Law of Administration Wills (3 ed.), § 544, pp. 1853-1855; 2 Ency. Pl. Pr. 171, notes. In some states it is the imperative duty of an executor to defend the will: 23 C.J. 1171, § 388; 3 Schouler on Wills (6 ed.), § 2231. In Cheever v. Circuit Judge,45 Mich. 6, the syllabus reads thus:

"Executors under a will which gives them exclusive powers and trusts and provides for unborn heirs, may appeal from its disallowance though all the beneficiaries named in it, and all who would have been interested if the decedent had died intestate, should settle the estate among themselves and oppose the appeal."

See, also, Graver v. Tilton, 63 N.H. 192; Shirley v.Healds, 34 N.H. 407.

It is the duty of an executor to appeal if in good faith he is satisfied that the will has been improperly rejected. The duty is imposed upon an executor or executrix to execute the will of the testator. The executrix is the sole trustee for all persons having an interest therein and the only legal representative of the estate of the deceased. If, as in the present case, the executrix could not properly execute the will and carry out the trust in accordance with the decree of the trial court, it was appropriate for her to appeal in the interest of all concerned.

In the case at bar the executrix claims to have a special interest in the administration of the will by reason of having already paid to Robert T. Hough as legatee, by order of the County Court, the sum of $250. After receiving this amount Robert T. Hough seems to have failed to take further interest in the proceedings.

The result of the appeal being favorable to the validity of the will should inure to the benefit of Robert T. Hough, named in the will as the sole beneficiary, whether he appealed or not. Based upon the facts found by the Circuit Court the will in question is declared to be valid, and the last will and testament of Alfred Hough, deceased, and should be administered according to its terms.

We approve the ruling of the trial court in regard to costs and disbursements to the extent that appellant's costs and disbursements herein be satisfied from the assets of the estate. The respondent will not recover any costs.

The decree of the trial court will be modified in accordance with this opinion and the cause will be remanded for further appropriate proceedings.

MODIFIED.

McBRIDE, C.J., and BROWN and BELT, JJ., concur.