State Ex Rel. Hill v. District Court of Second Judicial District

MR. JUSTICE ANGSTMAN

(dissenting) :

I think an executor named in a will has a sufficient interest in the estate to contest a subsequent codicil naming another as executor and making no other change in the will.

The grounds of contest here are not alone the incompetency of the testatrix but also that she was at the time acting under undue influence, and that the codicil was not executed and attested according to law.

Our statute, R. C. M. 1947, sec. 91-802, assumes that an executor named in a will is a person interested in the estate. It provides: “Any executor, devisee, or legatee named in any will or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing, in *7his possession or not, or is lost or destroyed, or beyond the jurisdiction of the state, or a nuncupative will.”

Authorities are not in agreement as to whether a person named in a will as executor is a person' interested in the estate entitling him to contest a subsequent will or codicil naming another as executor and making no other change in the will.

The cases of Helfrich v. Yockel, 143 Md. 371, 122 A. 360, 31 A. L. R. 323, and In re O’Brien’s Estate, 13 Wash. (2d) 581, 126 Pac. (2d) 47, are leading eases sustaining the action of the trial court.

Others taking the opposite view are: In re Murphy’s Estate, 153 Minn. 60, 189 N. W. 413; Matter of Greeley’s Will, 15 Abb. Pr., N. S., N. Y., 393. And see In re Browning’s Will, 162 Misc. 244, 294 N. Y. S. 530; Webb v. Lohnes, 68 App. D. C. 310, 96 F. (2d) 582; In re Davis’ Will, 182 N. Y. 468, 75 N. E. 530, and In re Langley’s Estate, 140 Cal. 126, 73 Pac. 824. Authorities recognize a divergence of views on the subject. 57 Am. Jur., Wills, sec. 824, p. 554; 68 C. J., Wills, sec. 637, p. 906; note in 31 A. L. R. 328.

In re Pepin’s Estate, 53 Mont. 240, 163 Pac. 104, 105, is relied on as sustaining the trial court’s action. In that case this court said: “It is an elementary proposition that the only persons authorized to contest or seek revocation of the probate of a will are those who, but for the will, would succeed in some degree to the decedent’s estate. Rev. Codes, sec. 7407; [citing cases]. ’ ’ That ease is not controlling here. In that case the will contest, if successful, would have affected disposition of the property involved in the estate and nothing more. What the court said in that case is obviously correct when applied to the facts there involved. But here the contest does not affect the disposition of property under the will. The only issue between Hill and Rees is which of the two shall serve as executor. There is no contest of the will itself so far as it disposes of property. Hence we have a situation where, if Hill has not a sufficient interest in the estate to contest the last alleged codicil naming Rees as executor, there is no remedy *8at all, contrary to R. C. M. 1947, sec. 49-115, providing that, "For every wrong there is a remedy.”

Legatees and devisees may not contest the last codicil because their right of sucfeession and devolution of property is not affected or impaired by the last codicil. In re Land’s Estate, 166 Cal. 538, 137 Pac. 246; In re Anthony’s Estate, 127 Cal. App. 186, 15 Pac. (2d) 531.

If the codicil may not be questioned upon the grounds here asserted, then it could not be even if the codicil were alleged to be a forgery. Without suggesting any wrongdoing in this case, it is sufficient to say that such a conclusion would permit a wrongdoer to take advantage of his own wrong, contrary to R. C. M. 1947, see. 49-109-, While there is authority to the contrary, I think the better reasoned ■ eases support the view that a person named as executor in a will has a sufficient interest in the estate to contest a subsequent codicil naming another as executor and making no other change in the will, and this I think is the implication from section 91-802, supra.

The position of an executor is in some respects similar to that of a public officer. Both are trust relationships. Both are expected to give full value in services for the compensation received, a factor stressed in the O’Brien Case, 13 Wash. (2d) 581, 126 Pac. (2d) 47, as showing lack of pecuniary interest in the estate. But one claiming a public office has such a financial and property interest in the office as entitles him to be heard on the question as to which of two persons is entitled thereto. 42 Am. Jur., Public Officers, see. 9, p. 888, note 9; 67 C. J. S., Officers, sec. 6, pp. 116, 117; State ex rel. Ryan v. Norby, 118 Mont. 283, 165 Pac. (2d) 302. The same reasoning applies to one named as executor in a will.

The suggestion made in the majority opinion that this conclusion invites expensive litigation at the expense of the estate is unwarranted in view of the holding of this court in the case of In re Ruane’s Estate, 125 Mont., 204, 233 Pac. (2d) 400, 404, where we said: "It cannot be said in this case that the litigation which ensued to contest the right to administer the estate was *9in anywise beneficial to the estate or its rightful beneficiaries. The court properly disallowed attorney’s fees and expenses for conducting that litigation.”

Nor does the case of State ex rel. Eakins v. District Court, 34 Mont. 226, 85 Pac. 1022, support the statement made in the majority opinion. It does hold that the public administrator in that case did not have a sufficient interest in the estate to entitle him to object to the probate of the will. But the reason is obvious. Contrary to the statement made in the majority opinion he would not have been entitled to act as administrator and receive fees as such even if there had been no will. In that case there were surviving two minor sons, two adult sons and the wife of decedent. If the will were set aside the surviving wife, or some competent person whom she might have requested, and the two adult sons would all have been entitled to priority in appointment as administrator over the public administrator. R. C. M. 1947, sec. 91-1401. And since in that case the court had pending before it an application for letters and since there were known heirs, the situation did not warrant intervention by the public administrator under R. C. M. 1947, sec. 91-601.

The Eakins Case was clearly right but it has no application to the facts here involved and does not by analogy or otherwise support the view stated in the majority opinion.

I think the order of the district court sustaining the demurrer of Rees was erroneous and that the demurrer should have been overruled and the petition of Rees and the opposition thereto should have been heard and tried on the merits.

MR. JUSTICE BOTTOMLT: I concur in the foregoing dissent of Mr. Justice Angstman.