Zimmer v. Saier

Grant, J.

(after stating tivs facts). The record contains no parol evidence upon the employment of Mr. Gardner in the will contest. None of the testimony bearing upon this item, if any was taken, appears. Whether Mr. Gardner was employed in the probate court the record fails to show. It is recited in the record as follows:

“ It further appears that L. B. Gardner, at the request of the five above named who were in favor of the will *391 bearing date January 11, 1898, took part as an attorney for the proponents of the will in the trial, both in the circuit court and in the Supreme Court, and said administrator, at the request of said five who were in favor of said will, paid said L. B. Gardner for his services aforesaid the sum of $400, out of the funds of said estate, and said administrator with the will annexed, in his said final account so filed June 11, 1903, claimed credit for said sum of $400 so paid to L. B. Gardner at the request of the proponents of the will bearing date January 11, 1898i”

It was the duty of Mr. Zimmer as special administrator to simply conserve and save the estate, ready to be turned over to the regularly appointed administrator when appointed. 3 Comp. Laws, § 9326; Grece v. Helm, 91 Mich. 450 ; Schouler on Executors (3d Ed.), § 135. The will of 1898 failed to appoint an executor. Mr. Zimmer as such special administrator could neither employ himself, nor any other attorney, in the will contest. It is stated upon the record that Mr. Zimmer was employed as attorney to represent the five heirs who were in favor of the will, not the estate, and it is also conceded that Mr. Gardner was employed by and represented' the same five heirs in. that contest. Neither Mr. Zimmer nor Mr. Gardner represented the estate. Mr. Zimmer continued to act as special administrator, at least until he was appointed administrator with the will annexed under the probate order of April 27, 1898. The appeal from that decision suspended the order (Schouler on Executors [3d Ed.], § 161), and all that any administrator, whether special or general, could do would be to conserve the estate, pending the decision as to the validity of the will, under the order of the probate court. It is undoubtedly the duty of the executor named in the will to present it for probate, and to take the necessary steps to secure its probate. That duty, however, did not devolve upon Mr. Zimmer, for he was not named executor in the will. He had no interest in the estate, except by virtue of his employment as attorney for the proponents of the will. The heirs promptly arrayed themselves in the court, the one *392 side to contest, and the other to sustain, the will. Under the condition of the estate it was then the duty of Mr. Zimmer to leave the contest to those directly interested, and confine himself strictly to conserving the estate and preserving it for those who should be held finally entitled to it. In re Soulard’s Estate, 141 Mo. 642 ; In re Parsons’ Estate, 65 Cal. 240 ; Schouler on Executors (3d Ed.), § 544. He now seeks to compel adverse parties to pay for services of attorneys employed against them. This is not one of those cases where the court is justified, in allowing the administrator to employ counsel in litigation which is for the benefit of the estate. Such action of the court would compel the contestants, the other heirs of the estate, to pay in part the expenses of the proponents’ attorneys. I find no precedent for such a proceeding. The heirs in this case chose'to have litigation, (which, speaking for myself, was needless), and each party should pay their own costs.

Another complete answer to the allowance of this claim is that the stipulation discontinued one suit, disallowed one will, and provided for the probating of the other, without costs to either party. This stipulation settled all doubt, and left each party to pay their own attorneys and their own costs.

As to the $194, the jury found in reply to a special question that it was “agreed between the administrator and all the heirs or their representatives that he should have his fees out of the estate just the same.” Under this finding we see no objection to the allowance of this item. The $400 will be eliminated from the account, and the balance of the account affirmed.

The appellants will recover costs.

Blair, C. J., Montgomery, Brooke, and McAlvay, JJ., concurred.