Sheetz's Appeal

Mr. Justice Sterrett

delivered the opinion of the court, October 2d 1882.

After a protracted and vigorously conducted contest, the paper writing purporting to be the last will and testament of Eobert Whitaker, deceased, was decided to be a forgery, and letters testamentary were granted to the executors of the genuine will. The forged will was produced for probate by W. E. Dickerson, Esq., who had been the friend and legal adviser of the deceased. A caveat was filed, and after a large amount of testimony had been taken, an issue was directed to determine the validity of the alleged will. When the issue came on for trial in the Court of Common Pleas No. 1, an agreement was made between the parties thereto, in pursuance of which a verdict against the will was taken, and the sum of $15,000 was paid to appellant for his expenses, including counsel fees. A petition was afterwards presented by Mary E. Service, a legatee, in behalf of herself and others, and also by W. E. Dickerson, Esq., in his own behalf, praying the court to set aside the verdict. This -was done, and the second trial resulted as before, in a verdict for defendants, finding substantially that the Dickerson will was a forgery. Subsequently appellant presented to the Orphans’ Court a claim against the estate for expenses of the second trial, viz: $927, witness fees, and a reasonable allowance for counsel fees, neither of which was allowed. The subject of complaint in the several specifications of error is the rejection of this claim.

It may be conceded that appellant, in endeavoring to establish the validity of the disputed paper, acted in good faith, believing it -was the genuine will of Mr. Whitaker; but purity of motive and goodness of intention alone will not justify the allowance of such a claim as that made in this case. While the general and almost universal rule is that the defeated party is not entitled to costs, an exceptional case is sometimes presented in which it may be proper for a chancellor to make a reasonable allowance for counsel fees and expenses of the losing party, on the ground that it is a charge which in equity and good conscience the fund ought to bear; but, as remarked by the learned judge of the Orphans’ Court, it would be an extraordinary perversion of this doctrine to apply it to one claiming adversely to the will of a testator, and seeking, through the instrumentality of a forged document, to defeat its operation. The allowance of costs in Geddis’ Appeal, 9 Watts 284, to a disinterested executor, who in an issue devisavit vel non unsuccessfully defended a will which had been admitted to probate, and under which he was acting, rests on the peculiar circumstances of that case. They differ so -widely from those of the present case that the principle on which the former rests is inapplicable to the latter. The ruling in Royer’s Appeal, 1 Harris 568, that it is the duty of an executor to sustain the will, is qualified by saying, that under our decisions, his right to do so depends altogether upon whether the litigation is for the benefit of the estate or in promotion of the interest of those eventually entitled to the fund.” And the learned judge who delivered the opinion in thjt case adds: It is therefore difficult to imagine how, where a pretended will has been repudiated by verdict, the costs of the contest can he cast on those who have succeeded. In Scott’s Estate, 9 W. & S. 98, the executor prosecuted the litigation to a successful issue, not for his own benefit, but in the interest of the legatees, wlio thereby obtained the whole estate. It was there held that he was entitled to credit fees paid counsel for their professional services in establishing the validity of the will and the bequests therein contained. If he had been unsuccessful, bis claim to be paid out of the funds of the estate would liave rested on different and wholly untenable grounds.

"Whatever may be the rule in other states it is sufficient to say that in Pennsylvania the right of an executor to costs in an issue dovisavit vel non, even when successful, depends on the question whether the litigation is for the benefit of those entitled to the estate. In no possible view was the effort of appellant to establish the forged will of any benefit to the widow and legatees of the testator in this case: on the contrary, it was fraught with nothing but peril and expense to them.

The question before the Orphan’s Court was rightly decided in accordance with the principles recognized in the cases above cited: to which may be added Mumper’s Appeal, 3 W. & S. 441, and Rankin’s Appeal, 10 W. N. C. 235.

Decree affirmed at the costs of appellant, and appeal dismissed. 0