On Motion for Rehearing. Appellant complained on appeal of the refusal of the trial court to render judgment in her favor against the estate of the testator for such reasonable fee as she would be compelled to pay the attorney employed by her in an effort to have the will of D. S. McCannon, deceased, probated, and for all costs incurred by her in such effort, insisting that it was her duty as the named executrix of the will to undertake to have the same probated.
The majority of the court overruled appellant's contention.
Appellant has filed her motion for rehearing, and insists that the court erred in its overruling of her complaint, and again insists that, in the event the probate of the will is finally refused, judgment should be rendered for her for such fee and costs.
Upon consideration of the motion, we have reached the conclusion that we erred in our former ruling, and we now hold that, if it should be found by the trial court that appellant acted in good faith in offering the will for probate, her prayer for attorney's fees and costs should be granted, even though the probate of the will is refused.
Sound reasoning, we think, would dictate that an executor who in good faith has employed counsel in an effort to have the will probated should not be deprived of his right to charge the counsel fees upon the estate. It was the duty of the executor to see that the will was offered for probate. In support of the conclusion now reached by us, we cite the authorities cited by appellant in support of her contention, together with the statements made by her as to the holdings of cases cited, as follows:
40 Cyc. 1362; Henderson v. Simmons, 33 Ala. 291, 70 Am.Dec. 590; Raines v. Raines, 51 Ala. 237; Alexander v. Bates, 127 Ala. 328, 28 So. 415 (will sustained); Gilbert v. Bartlett, 9 Bush. (Ky.) 49; Phillips v. Phillips, 81 Ky. 328; Taylor v. Minor, 90 Ky. 544, 14 S.W. 544 (obiter) Baldwin v. Barber, 148 Ky. 370, 146 S.W. 1124; McMillen v. McElroy,186 Ky. 644, 217 S.W. 927; Re Hentges, 86 Neb. 75, 124 N.W. 929, 26 L.R.A. (N.S.) 757; Day v. Day, 3 N.J. Eq. 549 (will denied probate); Boylan v. Meeker, 15 N.J. Eq. 310 (will denied probate); Senter v. Pentheram, 64 Misc.Rep. 294, 118 N.Y.S. 347 (will sustained); Bennet v. Bradford, 1 Cold. (Tenn.) 471 (will sustained); Bowden v. Higgs, 9 Lea (Tenn.) 343 (will defeated); Lassiter v. Travis, 98 Tenn. 331, 39 S.W. 226 (will defeated); Davison v. Sibley, 140 Ga. 707, 79 S.E. 855 (will denied probate).
"We call attention to the case of Lassiter v. Travis, 98 Tenn. 330,39 S.W. 226, supra, where the court holds that good faith, rather than pecuniary interests, on the part of the acting executor is a controlling question, and further holds that the fact that the executrix was a large beneficiary under the will does not defeat her right to attorneys' fees; the court saying:
"`Being named as executrix in what seemed to be a valid will, it was the legal duty of Mrs. Lassiter to produce the instrument, if in her possession: and, after having done that, there rested upon her the further legal duty of having the supposed will probated, or of renouncing the executorship (Pritchard on Wills Adm'n, Sec. 30); and these duties were in no way affected by the fact that the will benefited her alone, in the sense that it gave her more and her sister less of their mother's estate than they would receive, respectively, in the absence of the will and as heirs at law. Pecuniary interest under a will is no disqualification for the office of executor, nor does it diminish or enlarge the duties of the person nominated to fill the office. * * *'
"In Butler v. Jennings, 8 Rich.Eq. 87, the executor was allowed attorneys' fees where the will was set aside for mental incompetency."
For the reasons stated, the motion of appellant is granted in part so as that our opinion may conform to the conclusions now reached by us. In all other respects the motion is overruled.