EXECUTORS AND ADMINISTRATORS-WILL CONTEST-RIGHT TO RECOVER COST FROM THE ESTATE

Letters testamentary were issued on April 5, 1938 to the Emporium Trust Company under the will of Henrietta Fetter. By the terms of the will the trust company had been named executor and also trustee of the residuary trust. Two-thirds of the income of this trust was to go to the testatrix\u27 son George for life, and the other third to the testatrix\u27 brother, Fred Morse, for life, with remainders over upon the death of the life tenants. On June 20, 1938, George Fetter appealed from the probate of the first will, alleging it was superseded by a later holographic will in the form of a letter written to him by testatrix, giving him all her property outright. He offered this letter for probate. The trust company defended the prior will without consulting the principal beneficiaries, George Fetter and Fred Morse. The defense followed the theory that the second will was a forgery, and to that end, engaged a handwriting expert and counsel. The Orphans\u27 Court adjudged the second will, leaving all the property to the son, valid, struck off the first will and revoked the letters testamentary issued to the trust company. The trust company filed its account: $750, the amount paid the handwriting expert; $1,000, counsel fees; and incidental costs, all of which total $1,891.18. While the appeal was pending, in May 1939, under court order, the trust company repaired buildings damaged by fire for which insurance money had been collected. The total assets of the estate were $2,971.33. Held, expenses will not be allowed to the trust company because an executor has no duty to defend a will; if he does defend it, he may do so only at the expense of those to be benefited by his action; and he cannot charge the expense of a will contest to the estate unless it is benefited by successful proceedings. Moreover, the trust company had not entered upon its duties as trustee despite the repair incident, for it knew the validity of the will was under attack. In re Fetter\u27s Estate, 151 Pa. Super. 32, 29 A. (2d) 361 (1942)