Cundiff v. Cundiff

Opinion by

Judge Cofer :

The order discharging the. rule against the appellees to bring into court the watches and chains referred to is not a final order, and the circuit court still has power to inquire through its commissioner or in such other manner as it may think best into the question whether the watches and chains are worth more than the amount at which they were estimated by the appraisers, and to charge the orders with such sum as it shall ascertain the several articles to be worth.

Counsel concedes the general rule to be that an executor who has in good faith attempted to sustain a will is entitled to his cost out of the estate, but claims that the effort to sustain the will of J. B. Cundiff was not in good faith and therefore that the nominated executrix had no right to be reimbursed her expenses.

The will was probated in the county court and upon full hearing on appeal to the circuit court it was sustained by the verdict of a jury and the judgment of the court. Those facts are sufficient to show that there was sufficient evidence of the genuineness and validity of the will to make it the duty of the executrix named therein to make an effort to have it probated, and as such was her duty she is entitled to her cost in that behalf, legal and extraordinary. That she was more interested than any other person in sustaining the will does not lessen her right to her costs; something is due as well to the testator as to the devisee, and the nominated executor owes it not only to himself but to the other beneficiaries and to the testator when there are reasonable grounds to believe that the will can be sustained, to make the effort.

We will not therefore look into the evidence heard on the trial of the issue of will or no will, but accept the result of the trial in the circuit court as sufficient to entitle the nominated executrix to her costs. Judgment affirmed.