Hemsted & Everson v. Ferry

Waterman, J.

But a single question is presented by tbe record, and tbat is as to the standing appellants bave to urge any objection to tbe order of probate. We bave no statute defining tbe qualifications of those wbo may contest tbe probate of a will, but we understand tbe general rule to be tbat sucb action can be taken only by one who would bave a beneficial interest in tbe estate, if there was no sucb will. This rule has received our express recognition heretofore in Kostelecky v. Scherhart, 99 Iowa, 120 . See, also, In re Langevin’s Will, 45 Minn. 429 ( 47 N. W. Rep. 1133 ); Reid v Vanderheyden, 5 Cow. 719 ; Meyer v. Fogg, 7 Fla. 292 . Tbe fact tbat an executor is to receive compensation out of tbe estate cannot be said to give him an interest therein, for be gets this only in return for services rendered. He is expected to give full value therefor. It is claimed, however, by appellants, tbat an executor has, by virtue of bis office, a property interest in tbe personal estate. Any sucb interest is a mere naked trust upon which no sucb right as tbat here claimed can be predicated. An executor, as sucb, unlike a trustee, whose office is created by tbe will, is clothed with no discretion. His duties and authority, fixed by law, make him but a channel through which tbe property passes to those entitled by tbe terms of tbe instrument. It has been held tbat an executor, even when be is given a legacy, cannot be said to be interested in tbe estate, since be is expected to render services for what be receives. Reeve v. Crosby, 3 Redf. Sur. 74. Tbe supreme court of California has decided tbat tbe public administrator provided for under tbe law of that state has no sucb interest as will entitle him to contest a will. In re Hickman’s Estate, 101 Cal. 609 ( 36 Pac. Rep. 118 ); In re Sanborn’s Estate, 98 Cal. 103 ( 32 Pac. Rep. 865 ). Yet, if tbe will bad been set aside, upon sucb administrator would bave *119 devolved the trust duty of distributing the estate. While an executor derives his authority from the will, and not from the court, and though there are some acts which he may perform before probate of the instrument, yet there are many others which he cannot legally do until letters have issued. See cases cited in 8 Enc. PL & Prae. 654. The probate of the will furnishes the evidence of his authority. Until that is had, it is not known whether he is qualified to act. It would be most unjust to give him the right before he is confirmed, to involve the estate in litigation at the expense of the devisees and legatees, and against their wishes, as is the case here. Nor do we think there is any foundation for the contention that the appellants have any right to maintain this proceeding as trustees of an express trust, under section 3459 of the Code. This is not an action by trustees for the benefit of the cestuis que trust, but is rather in the nature of .a proceeding against the creator of the trust to test his right to revoke it.

II. Another ground set up by appellants is that it being their duty, as custodians of the will, to offer it for probate, the right attaches to take all necessary steps to secure a proper order of court. The record shows that they were not the custodians of the will, and that they did not offer it for probate, but that they intervened in proceedings begun by others. But, if the facts were as claimed, it would be their duty to offer the whole will for probate, and not a part only. The codicil makes no further substantial change in the disposition of the estate than to reduce the cost of a monument for testator. No one, aside from these appellants, objects to its probate. Notwithstanding counsel’s claim that appellants are acting here through disinterested motives, and from a high sense of duty alone, we must say that, outside of this assertion, we find nothing in the record that tends to so show.

III. One of the legatees under the will joined appellants in asking that the original will be admitted to probate, but she did not unite in contesting probate of the codicil, nor does she appeal. Nothing can be claimed by appellants, therefore, from the part she took.

*120 IV. Having no standing in court, appellants cannot be beard to-object to any action of tbe trial court; and we need not notice tbe further questions raised, other than to say that tbe motion to tax tbe costs of tbe amended abstract to appellees will be overruled. — Arrirmed.