Year: 1861

Decisions OF the Supreme Court OF the


state of Tennessee at Nashville, De-


ccmber Term, 1850.


James D. Bennett, Rxr, vs.. C. Bradford.


VIM Hutchison made his will and appointed his
son. VIM. II. Hutchson. and his son-in-law, }. d.
Bennett, Executors. The former propounded the
will for probate, in the County Court OF Sumner,
when Shaw and wife appeared and contested 1t.
The case then transferred to the Circuit Court
for trial, as provided by law.


The Executor Hutchison, and the contestants en-
tered into the proper bonds for costs The issue Of
will no will was made up. The will was estab-
lished. W. II. Hutchison became insane, and Jas.
D. Bennett was qualified by the County Court as
Executor. G. g. Bradford was employed by ". H.
Hutchinson as an attorney to attend to the case in
favor Of the will, both in the County and Circuit
Courts. He drew up his account for $50, as his
fee, and the executor Bennett, refusing TO pay it.
he sued him before Magistrate, and the case went
to the Circuit Court, where he recovered the
amount claimed. and the case IS brought here by
appeal in error.


By the Judgment of the Circuit Court the amount
recovered was to be collected out of the goods and
chates of the estate, if sufficient and if not then
the defendant to be personally liable. The plaintiff
in error insists that he is not liable either
tor personally, because he made contract with
the defendant in error in either capacity but that
W. II. Hutchinson is alone responsible, as he was
the contracting party, and made the contract for
himself.


But the Court charged that if Hutchinson employed
counsel to take the proper steps TO have the will
proven in his capacity Of nominated executor, the
estate would be liable for such services, in the
will was established; but that if he employed the
counsel as legatee, and not executor, or agreed
to pay him out Of his own funds, then it would be
a personal contract, and not charge upon the es
tate. Upon this charge the jury found for the
plaintiff below.


We think his Honor charged the law correctly.
1t is Bennett did not join in the issue OF dori
sat col non, did he contract with the attorney
but upon the establishment of the will he took upon
himself the executorship, and thereby became re-
sponsible such to all proper claims against the
estate. Hutchison did not contract, as the jury
have found, as an individual for himself or agree
to pay out Of his own funds but in the performance
of a duty imposed upon him as the representative
Of the testator.


1t was his duty TO PROFOUND the will for probate.
He was acting for all the legstees under the will,
and this his duty, whether he had any interest
in it or not. He was under obligations, if he did
not renounce, to take all proper steps, and incur
any necessary expenses to sustain the will, and
faithfully carry out the trust imposed upon him. II
in doing this he had to employ counsel, It would be
most unreasonable TO throw the burthen upJn him
individually when he was acting for the benefit OF
others, and the discharge OF his duties their
r preventative.


it this view be correct as it seems TO us it most
clearly Is the estate must be liable, no mstter i
whose hands it may fall under the law. Bennett
then, by becoming executor, became responsible IL
that capacity for professional services rendered II
support OF the WILL


How this would be II case where II turned ou
upon trial that the paper propounded was not tbs
will of the deceased, need not say so tar as thls
case does not call for opinion on this point Tha
question may present much more difficulty, and W.
have it for a case in which it may properly arise
The Judgment will be affirmed.