Yerkes's Appeal

Mr. Justice Sterrett

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

The question in this case is, whether the expenses of litigation in the issue devisavit vel non, amounting to over $50,000, were a proper charge against the estate. It is conceded that the appellees, executors of Robert Whitaker, deceased, expended that amount in counsel fees and other expenses incident to the second trial of the feigned issue, but the contention is that it should not be so credited as to lessen the distributive share to which appellants, as executors of testator’s widow, are entitled.

The controlling facts under which the question arises are briefly these : Robert Whitaker died in August 1878, leaving a widow, but no issue surviving him. Two testamentary papers were presented for probate, in one of which the appellees were appointed executors, and in the other, purporting to he of subsequent date, Messrs. Sheetx and Negns were named as executors. In the issue directed to tost the validity of the last mentioned paper, a verdict against it was taken by consent of the parties thereto, and the other paper was immediately admitted to probate as the last will of Mr. Whitaker. Nearly six months thereafter, the verdict was set aside and a new trial ordered. After a protracted contest, the paper was again pronounced invalid on the ground that it was a forgery, planned and executed by persons who were subsequently indicted, convicted and sentenced for the crime.

A few days after Mr. Whitaker’s death, his widow and certain legatees and devisees under the first will signed a paper appointing Messrs. Cartwright, Fox and Heston as then* agents, “ to examine into the matter of any instrument purporting to he the will of Robert Whitalcer, and take such action as in their judgment may be expedientand also agreeing to pay their proportionate shares of expenses attending the same. Pursuant to the authority thus given, the agents above named filed a caveat against the probate of the forged will, and conducted the issue devisavit vel non to its termination in the compromise verdict of April 1st 1879, in favor of the genuine will. The expenses of the proceedings thus far, amounted to $40,000, one-half of which was paid by Mrs. Whitaker as her portion under the agreement.

Sometime after her husband’s decease, Mrs. Whitaker, in due form, elected to take, against any will of her husband, the one half of his personal estate, etc. to which she was entitled under the intestate laws.

After making a will, wherein she appointed appellants executors, Mrs. Whitaker died in July 1879. In the meantime, parties claiming an interest under the second will, had petitioned tbe court to set aside tbe compromise verdict, and in September 1879, the order to that effect was made. Shortly thereafter, appellants notified counsel for the parties named in the above mentioned agreement that the estate, represented by them, had no interest in continuing the litigation, and they therefore declined to pay or become responsible for any further sums of money connected therewith. No dissent to the letter, containing the notice, was expressed by the counsel to whom it was addressed, or by their clients ; and, before the second trial, the name of Mrs. "VVliitaker, as a party to the feigned issue, was stricken from the record without opposition on the part of those sustaining the contest.

Under these circumstances, can the claim of the appellees be sustained, either by virtue of the agreement of August 1878, or on the ground that the expenses were incurred in the interest and for the benefit of the estate represented by appellants ? We think not. Upon the death of Mrs. Whitaker, the paper referred to undoubtedly ceased to be operative as a power of attorney, so far as her estate was concerned, unless it was coupled with such an interest as rendered it irrevocable. It is well settled that the interest, necessary to render a power irrevocable, must be an interest in the subject upon which it is to operate, not an interest in that which is' produced by the exercise of the g>wer: Hunt v. Rousmanier’s Administrators, 8 Wheat. 174; Hartley’s Appeal, 3 P. F. Smith 212; Blackstone v. Buttermore, Ib. 266; Lightner’s Appeal, 1 Norris 301. The paper in question gave no interest in or right to anything, nor does it provide for compensation payable out of any particular fund, v iewing it as a power of attorney, it is lacking in every essential ingredient of irrevocability. But, it is claimed that it may be enforced as a contract between several parties, by which they are mutually bound to contribute to the common object, and that it became irrevocable as soon as expenses were incurred or legal obligations assumed in furtherance of that object. Conceding for the sake of argument that such would be its legitimate effect, it is a sufficient answer to say, that before the decease of Mrs. Whitaker, the agreement, according to the understanding of all parties thereto, was executed. The will had been established by a formal verdict, and letters testamentary issued to the executors named therein, and all expenses incident thereto were apportioned and paid. The liability of all parties to the contract was thus ended, and no legal reason existed to prevent Mrs. Whitaker from receiving one half of her husband’s estate. Before the litigation was resumed, and without assuming any new obligation in relation thereto, Mrs. Whitaker died, and that event was speedily followed by the notice above mentioned.

In view of what has been said, it is evident that no claim (founded on tbe agreement of 1878, or anything connected therewith) for expenses incurred after the date of the compromise verdict, can justly be sustained, directly or indirectly, against the estate of Mrs. Whitaker.

Nor do we think the claim in controversy can be sustained on the alleged ground that the expenditures of which it is composed, were made in the interest of Mrs. Whitaker, or for the benefit of her estate. She had elected to take under the intestate law, and «was therefore not interested in the result of the feigned issue. Moreover, timely notice was given by her executors that her estate was not interested in the controversy and would not be responsible for any expenses connected therewith. It is well settled that an executor or administrator who becomes a party to an issue devisavit vel non must look to those who authorized him to engage therein, and cannot charge his expenses to the estate he represents, unless the latter is benefited by the proceeding: Dietrich’s Appeal, 2 Watts 332; Koppenhaffer v. Isaacs, 7 Ib. 170; Geddis’ Appeal, 9 Ib. 284; Mumper’s Appeal, 3 W. & S. 441; Rankin’s Appeal, 10 W. N. C. 235; Royer’s Appeal, 1 Harris 569. The general principle, underlying these cases, is that an executor is not bound to defend his testator’s will, but if he undertakes to do so, it must be as the agent and in the intosest of those benefited by his action.

But, it is' claimed that if the forged will had been established, the estate, or a considerable portion thereof, would probably have been squandered by those who, in that event, would have had the custody and management of it, and lienee Mrs. Whitaker’s estate was interested in maintaining the genuine will. This position is untenable. Apprehended danger of such disaster, even if well founded, cannot bo recognized as a just basis of liability, especially in the case of a party who expressly refuses to participate in the controversy.

We are of the opinion that the learned court erred in allowing the credit claimed by tlio appellees for expenses of litigation in the issue devisavit vel non.

Decree reversed at the costs of appellees, and record remitted to the Orphans’ Court with instructions to enter a decree in conformity to the foregoing opinion.