ON REHEARING.
To the previously expressed opinion in this case that “where a person named in a paper purporting to be a last will and testament as executor, presents such paper to a Court for probate, and it is probated; but the paper is subsequently held to be an absolute nullity as a will because of the notorious habitual insanity of the person executing it, and it is shown that the person who presented it for probate and who qualified as the executor, was fully aware of the habitual insanity of the testator at the time the paper was executed, but who withheld such information from the Probate Court, he but practices a gross fraud on the Court by his conduct and cannot recover any' commissions as executor,” we add “nor any other charges or expense which he has incurred in order to protect his personal interest or to have his illegal acts defended, be imposed to the estate.”
MOORE, J.A rehearing was granted in this case on the application of the appellant who complained of so much of our former opinion and decree as recognized the executor’s counsel fees as a debt due by the estate, instead of by the executor personally.
No application for rehearing was applied for by the appellee, and, of course, no rehearing was accorded him.
Reflection has convinced us that the complaint of appellant is well founded and that it was absolutely illogical for us to hold that forasmuch as Bartholomew Morere, the executor, was in bad faith and had practiced a fraud on the Court in having the will probated without advising the Court at the time he offered the will for probate of the’notorious and habitual insanity of Pierre Morere he could not recover his commissions but that the other expenses which his fraudulent action entailed must be borne by the estate, notwithstanding the estate received no benefit therefrom whatsoever.
We remain fixed in the view originally entertained by us that Bartholomew Morere was in absolute bad faith throughout *159this entire transaction; that he was a secret debtor of his insane brother, receiving a large sum of money from him on the day the will was executed, though at the time the will was probated the Curatrix of his interdict brother had forced, by suit, Bartholomew to restore the money; that he knew on the day the will was executed, and had known long prior thereto, that his brother, Pierre was habitually insane and that the insanity of his brother was notorious in the locality in whch Pierre lived; that he knew that seven days after the execution of the will his brother was interdicted as being subject to an habitual state of imbercility or madness, and that he himself so testified as a witness in the interdiction suit; that from its execution, on Nov. 12, 1900, the will remained in his possession until it was presented for probate on April 28, 1903, without his ever having mentioned its existence to the wife of Pierre; that it was offered for probate by him and was probated upon the testimony of Mr. Soniat and of Bartholomew simply upon proof that it was entirely written and signed by the testator, no information whatsoever being 'vouchsafed by) him to the Court that at the time of the execution of the will his brother was and had been for months “habitually insane.” Not only this but on the trial of the case for the annulment of the will Bartholomew testified that he had never heard anything concerning his brother’s insanity until subsequent to the making of the will, to-wit, four days after the will was made and when Pierre was incarcerated in the asylum.
This, and much more, is stated in the opinion of the Supreme Court concerning Bartholomew’s connection with this matter. Sue. Pierre Morere 114 La. 506. The Court, as stated, found that Pierre Morere “was habitually insane before, about the time of and after the making of the will,” and that Bartholomew was aware of this fact. The Court also found that as matter of law the burden in such cases of proving sanity at the moment of the making of the will rested upon those who are seeking to maintain the validity of the will and that the burden is not shifted by reason of the fact that the expressions and dispositions of the will are intelligent and judicious, unless it be also shown, affirmatively, that the will was made, or declared by the testator himself, unaided and uncontrolled; and it is also found, as a matter of fact, that *160Bartholomew Morere knew that Pierre had not made the will unaided and uncontrolled.
If, when Bartholomew offered the will for probate, the Court had been advised that Pierre was prior to, and at the time of making the will, habitually insane and that the will was not made by him unaided and uncontrolled can it be supposed for an instant that upon simple proof that the will was entirely written and signed by Pierre the Court would have ordered it probated. Assuredly not.
Bartholomew made no such representations to the Court but on the contrary not only had the will probated by suppressing those facts, but attempted to have it maintained, when subsequently a suit was brought to annul it, by giving testamony that Pierre was sane on the 12th Nov. 1900, which testamony the Supreme Court says “is shown to be untrue.”
If withholding all the facts from the Court which if made known would have defeated the probate of the will, is not but practicing a fraud on the Court, then we do know what would constitute a fraud.
No expense incurred by him in his effort to maintain this will can be imposed on the estate, whether that expense be for attorneys fees of for other purposes. Bartholomew Morere must bear all of these personally. Besides this the contest over the question of the annullment of the will was between the minor children of Pierre Morere, who were made parties by citing their under tutor, and who appeared by separate counsel, and who alone were interested in the contest. The executor from the moment had no further interest in the question and certainly not to the extent of employing separate counsel to protect his interest at the expense of the succession. As said in Gerard vs. Babineau 18 A. 603: “From th moment that all the legaties of Marguerite Babineau appeared in Court and filed their answers to the direct action to annul the will, the contest was between them and the heirs, not between the latter and the testamentary executor.” In that case the fees of the attorneys representing the executor was held not to be chargeable to the estate.
In Fenner vs. McCann 49 A. 608, the Court said under the decision of this State are uniform that an administrator or execu*161tor who had a personal interest to defend, or who has admitted acts of maladministration, can not have his interest protected or his illegal acts defended at the expense of the Success he represents. And this has been the uniform decision of other jurisdiction.
March 19, 1906.We are compelled to set aside our former opinion and decree and to maintain the opposition of the widow Morere so far as concerns the executor’s commissions and the fees claimed by his attorneys.
It is therefore ordered, adjudged and decreed that our former opinion and decree be set aside and amended and it is now ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended by striking therefrom so much thereof as rejects the widow Pierre Morere’s opposition to the executor’s account filed on the 25th June, 1903, and so much thereof as allows the executor to add to his account the sum of three hundred dollars attorney’s fees for Henry Denis, Esq.; and it is further ordered, adjudged and decreed that the item of executor’s ' commissions and attorney’s fees appearing on said account be striken therefrom and that the claim of Henry Denis to be placed on said account for thé sum of three hundred dollars be disallowed. And thus amended the judgment is affirmed. The costs of the appeal as well as those of the lower Court incurred in the trial' of the opposition to be paid by appellee.
DUFOUR, J., Dissents.