#### N. K. Butler, adm’r, *vs.*Joseph H. Jennings.

where a will is admitted to prohate in common form, and is afterwards impeached and finally set aside by the verdict of a jury, on the ground of the testator’s insanity, the executor will be allowed all expenses necessarily incurred by him in defending the probate.

BEFORE JOHNSTON, OH.. AT EDGEFIELD, JUNE, 1855.

Henry E. Ereeman of the district of Edgefield, on the 8tb June, 1851, executed a paper purporting to be bis last will and testament, of which the defendant, Joseph H. Jennings, and Startling S. Ereeman, were nominated the executors. On the 1st August, 1851, the said H. F. Ereeman died — the paper was admitted to probate in common form by the Ordinary of the said district, on the 7th October, 1851, and on the same day the defendant was duly qualified as its executor. The decedent left surviving him his wife, Catharine C. Ereeman, who, on the 10th September, 1851, gave birth to a daughter, Henrietta Ereeman. Afterwards at the instance of the said Catharine 0. and Henrietta Ereeman, the defendant was cited before the said Ordinary and required to prove the said will in due form of law, and thereupon such proceedings were had that on the 5th August, 1852, a decree was pronounced by the said Ordinary adjudging that the paper in question was the last will and testament of the said deceased, and admitting the same to probate in due form of law. From this decree of the Ordinary, the said Catharine 0. and Henrietta Ereeman appealed, and for that purpose filed a suggestion in the Court of Common Pleas for the said district, controverting the said decree upon various grounds, and among them upon the ground that at the time of the execution of the said will, the said H. E. Ereeman was laboring under partial insanity, or an insane aversion to his wife. To this suggestion the de*88fendant pleaded, and issue being joined, the cause was tried before Munro, J., at the March term of 1854. On the opening of the case, and without any previous notice given to the defendant’s attorney, the counsel for the suggestors moved for the following order:

“ Catharine C. Freeman, and another, *vs.*Joseph Jennings

*“*On motion by Messrs. Miller, Bonham and Moragne, attorneys for Catharine 0. Freeman, ordered that the said Catharine have leave to withdraw her suggestion against the decree of the Ordinary, admitting the will of Henry F. Freeman to probate, and that the cause proceed in the name of Henrietta'' Freeman by her guardian *ad*litem, James A. Collins.”

The motion, though earnestly opposed, prevailed, and the order was passed. In the progress of the trial the suggestor, Catharine C. Freeman, executed a release of all her interest in her deceased husband’s estate to W. C. Moragne, Esq., in trust for her infant daughter, the said Henrietta, and though objected to as incompetent, was permitted to testify as a witness in the cause. The jury rendered a verdict declaring the will to be null and void, and the defendant appealed and moved for a new trial, and for the reversal of the order referred to, but this motion was dismissed.(a) Subsequently the administration of the said decedent’s estate was granted by the Ordinary to N. K. Butler, who, on the 7th April, 1855, exhibited his bill against the said Jos. II. Jennings for an account of the effects and estate of the deceased come to his hands. Expenses to a considerable amount had been incurred by the said Joseph II. Jennings, whilst acting as executor as aforesaid, for legal *89advice and for counsel fees, and costs and charges of suit in the litigation touching the validity of the said will. In his answer,- and on the reference before the commissioner, the defendant insisted that so muchof those expenses as were incurred whilst the aforesaid decrees of the Ordinary stood unreversed, constituted a rightful charge upon the estate of the deceased, and that his (defendant’s) accounts should be settled accordingly, but the commissioner ruled otherwise, and on the 30th May, 1855, filed his report upon the accounts, rejecting the credits claimed in that behalf by the defendant and ascertaining thé sum due by him on 1st June, 1855, to be five thousand seven hundred and twenty-one dollars and fifty-five cents. The portion of the commissioner’s report that relates to the rejected credits is as follows :

“ The commissioner in making up the account, rejects entirely the claim of the defendant to certain counsel fees, and costs incurred in the suit at law. The deduction seems unavoidable, that Jennings wTas no legal executor ; and if not a legal executor it does not appear to the commissioner that he can in any view set up a reasonable claim to costs incurred while defending the very case in which he was defeated, as to his claim of *executorship.”*

To this report the defendant filed the following exceptions :

1. The decrees of the Court of Ordinary admitting the paper propounded by the defendant to probate, first in common form, and afterwards in due form of law, as the last will and testment of Henry F. Freeman, deceased, were judgments of a Court of competent authority upon a matter clearly within its jurisdiction, and whilst those decrees stood unreversed, the said paper was in legal contemplation, the lawful will of the said Freeman, and the defendant its lawful executor, and with all the rights and immunities incident to that office ; and the defendant - maintains therefore, that the fair and reasonable *90expenses incurred *by*bim as sucb executor, whilst the said decrees stood unreversed, are proper and rightful charges upon the estate of the deceased, and that the commissioner erred in ruling otherwise.

*2.*Because after joinder of issue upon the suggestion of appeal from the decree of the Ordinary, and on the very eve of its trial before the jury, Catharine Freeman the widow of the deceased, one of the suggestors, was, on motion by her attorney,, of which no previous notice had been given to the defendant or his attorney, permitted by the Court to withdraw her name from the record, to assign her interest in the estate of the deceased for the benefit of her daughter, and remaining suggestor, and then to be introduced and to testify as a witness in the cause, and this too, without payment of the costs, the ordinary condition upon which amendments of the pleadings in the law courts are allowed — which conditions, it is submitted, should have been and would have been imposed, had it been suggested to the Court by the defendant’s counsel, who, however, omitted to do so, being surprised by the application — and under such circumstances, the defendant maintains that he is equitably and of right entitled to be reimbursed his costs and charges of suit incurred up to that stage of the proceedings— and that the commissioner has erred in ruling otherwise.

The case -was heard on the- report, and the defendant’s exceptions thereto, at the June sitting of 1855, before his Honor, Chancellor Johnston, who overruled the exceptions, and pronounced the following decretal order :

JohnstoN, On. This case having come on to be heard on its merits, upon the report- of the commissioner submitted as information, and exceptions thereto, and after 'discussion, it is adjudged and decreed that the said report be confirmed, and that the defendant pay over to the plaintiff, the sum of five *91thousand seven hundred and twenty-one dollars and fifty-five cents, with interest from June 1st, 1855.

The defendant appealed, and moved for a modification of the decretal order, upon the ground, that the order .overrules the defendant’s exceptions to the commissioner’s report, both of which ought to have been sustained for the reasons therein set forth.

*Baushett, Carroll,*for appellant,

cited *Allen*vs. *Douglass,*8 T. B. 125 ; *Poag'*vs. *Carroll,*Dud. 5; *Thompson*vs. *llarth,*1 Sp. 99; Act 1889, § 11, 11 Stat. 41; Act 1789, § 20, 5 Stat. 109; 1 Hag. 71; 2 N & McC. 577; 1 Bay, 221; 8 Wash. C. C. 122 ; 2 McC. 76.

*Moragne,*contra, cited *Maxwell*vs. *Connor,*1 Hill, 28.

(a)

**Vid© *Freeman*ts. *Jennings, *1*Rich. 383.

The opinion of the Court was delivered by

Dunkin, Ch.

Upon the statement submitted by the brief, the Court are all of opinion that the defendant’s first ground of appeal is well taken. So long as the judgment of the Ordinary remained unreversed, the executor was entitled to be reimbursed all the necessary expenses incurred by him in sustaining that judgment. This position is fully sustained by the authorities adduced at the hearing. The Court will not undertake to say that extreme cases may not be supposed which would constitute an exception. A *pseudo*executor, who was successful enough by subornation of perjury to palm off upon the Ordinary a forged instrument as a genuine will, and whose turpitude was exposed in a trial before the jury, would scarcely be allowed to retain any part of the estate to reimburse the expenses of his nefarious attempt. No such case is here presented by the evidence. The verdict of the jury was manifestly founded on a conviction of the mental hallucination of the decedent.

*92But it was suggested at the bearing that the defendant had an interest under the supposed will. No such fact appears. The will is not before us, and counsel do not agree as to the provisions of the instrument. It seems that the wife of the defendant, took some interest; but it is insisted that whatever she took was to her sole and separate use. If so, the defendant had no interest of the character contemplated. But, if he had, we are of opinion that the expenses of maintaining and defending the will as admitted to probate and his title as executor, were properly and necessarily incurred — must be referred to his fiduciary relation, and should be allowed. In the case of *Wham*vs. *Love,*Rice. Eq. 51, all the ordinary duties of the defendant as administrator, had been fully discharged and the Court allowed all the expenses incurred in relation to the same. But a considerable sum of money remained in his hands for distribution amongst the next of kin. The plaintiffs claimed this fund as sustaining that character. The claim was resisted by the defendant on the ground that himself and other co-defendants were properly entitled as next of kin. The plaintiffs succeeded in the issue, and, in taking the account, the Court, expressly allowing all the expenses incurred by the defendant as administrator, declined to reimburse the expenses incurred on the trial of the issue, in a controversy, not for maintaining his fiduciary relations, but for advancing his private interests. If the act of the Ordinary in granting him letters of administration had been impugned, because he was not entitled as next of kin, or for any other cause, and his judgment had been subsequently reversed, still all his acts while proceeding under the judgment of the proper tribunal would be supported, and the expenses necessarily incurred by him in maintaining his fiduciary relation would be properly chargeable on the assets of the estate. The case is stronger where the executor has been appointed by the person, under whom the plaintiffs claim as volunteers; and whose will has been admitted to probate by the Ordinary in common form, and the executor qualified *93thereon. When the litigation was subsequently stirred and the will required to be proved in solemn form, the executor was not at liberty to withdraw or decline the litigation, and the expenses therein necessarily incurred'should be allowed in his accounts. It is ordered and decreed that the decree of the Circuit Court be modified, and the report of the commissioner reformed accordingly.

JoHNSTON, DabgaN and Wardlaw, CC., concurred.

*Decree modified.*