I dissent. I am unable to agree that an executor may not, in good faith and for sound reasons, defend the validity of a will at the expense of the estate he represents.
When a testator names an executor in his will it is an expression of trust and confidence in the executor named. The testator expects and the law requires that the executor shall carry into effect the will of the testator as expressed in the document presented for probate. Section 7016, Revised Codes; In re Hauge's Estate, 92 Mont. 36, 9 P.2d 1065; In re Murphy's Estate, 99 Mont. 114, 43 P.2d 233. In my judgment it would be an inexcusable breach of trust for the executor to fail to employ necessary counsel to defend the will when attacked and to carry into effect the trust that the testator had placed in his hands. In my view the real intention of sections 10047 and 10285, Revised Codes, is to deprive the incapable and reckless executor from wasting the funds of the estate when there is no substantial grounds upon which the assumption of the invalidity of the will can be based. Notwithstanding decisions to the contrary, particularly those in California, it seems to me absurd to assume that an executor has no right to employ counsel in proper circumstances. Whether the employment of counsel is necessary and whether there is sound reason for defending the will are questions to be determined by the trial court in the first instance and such questions should be determined in all cases in accordance with the exigencies of the particular occasion having due regard for the good faith and sound judgment shown on the part of *Page 393 the executor. The words used in the case of In re Carroll's Estate, 59 Mont. 403, 196 P. 996, 999, are logical and reasonable. It was there said: "The duty rests upon the executor named in the will to defend it unless it appears that the defense of the will would be fruitless and that the defense cannot be made upon substantial grounds." An executor, of course, cannot defend a will in a court action without employing competent counsel and if an executor in such circumstances is not permitted to make such defense at the expense of the estate, the will of the testator in many cases is very apt to be defeated.
Rehearing denied Sept. 18th, 1945.