the estate. In other jurisdictions the compensation of the personal representative is fixed upon a percentage basis in so far as the routine matters of administration are concerned, but with authority in the probate court to grant the representative compensation for special services not included in the routine matters, the amount of such compensation being dependent upon the circumstances and resting in the sound discretion of the court. In such cases if the personal representative who is also an attorney renders special professional services to the estate, services for which a lay representative would have been justified in employing counsel, the representative should be entitled to compensation for such services when the result is beneficial to the estate. The amount of compensation, however, should not be based upon the usual charges for such professional services, but should rest in the discretion of the court and be fixed at an amount which is fair and reasonable in view of the circumstances of the case and of the estate.48

§ 1564. Costs and Counsel Fees in Proceedings to Construe

Wills.

It frequently happens it is necessary that a proceeding be instituted in equity to construe doubtful or ambiguous expressions or provisions in a will. Whether or not such a suit is necessary depends upon the facts of the case. If the proceeding is necessary and is brought in good faith, the general rule is that the costs of the litigation shall be paid out of the estate, the amount to be allowed being discretionary with the chancellor.49 A court of equity

48 Clark v. Knox, 70 Ala. 607, 45 Am. Rep. 93.

See, also, Doss v. Stevens, 13 Colo. App. 535; Nelson v. Schoon

over, 89 Kan. 779, 132 Pac. 1183; Wendell v. French, 19 N. H. 205, 210.

49 Ingraham v. Ingraham, 169

in such a case possesses such power independent of statute.50 It is proper that the estate should bear the expense of costs of all parties since it is to the interest of all parties that the will be properly construed.51 This result is reached by directing the executor to pay the costs, credit therefor to be allowed him in his account.52

Where it is necessary that the executor institute a proceeding in equity for the construction of the testator's will, and the suit is brought in good faith, he should be allowed all necessary costs and expenses, including counsel fees.53 The rule is that the court should make an allow

Ill. 432, 48 N. E. 561, 49 N. E. 320; Lombard v. Witbeck, 173 Ill. 396, 51 N. E. 61; Post v. Hover, 30 Barb. (N. Y.) 312; Dill v. Wisner, 88 N. Y. 153; In re Davis, 132 Wis. 54, 111 N. W. 503, 1129.

50 Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396.

Only taxable costs as provided by statute can be allowed except in the instance of trustees or those acting in a representative capacity for the benefit of others, in which case an allowance may be made for counsel fees, payable out of the trust fund.-Matter of Robinson, 40 App. Div. (N. Y.) 30, 57 N. Y. Supp. 523; affirmed, 160 N. Y. 448, 55 N. E. 4.

And see, also, Downing v. Marshall, 37 N. Y. 380.

51 Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396; Arnold v. Alden, 173 Ill. 229, 50 N. E. 704; Lombard v. Witbeck, 173 Ill. 396, 51 N. E. 61; Eckford v. Eckford (Iowa), 53 N. W. 345; Clifford v. Stewart,

95 Me. 38, 49 Atl. 52; Deane v. Home of Aged Colored Women, 111 Mass. 132; Morse v. Stearns, 131 Mass. 389; Cox v. Wills, 49 N. J. Eq. 573, 25 Atl. 938; McLean v. Freeman, 70 N. Y. 81; Power v. Cassidy, 79 N. Y. 602, 35 Am. Rep. 550; Tiffany v. Emmet, 24 R. I. 411, 53 Atl. 281; Allison v. Allison, 101 Va. 537, 63 L. R. A. 920, 44 S. E. 904; In re Stuart, 115 Wis. 294, 91 N. W. 688.

52 Howard v. Smith, 78 Iowa 73, 42 N. W. 585.

To the same effect see: Buchanan v. Lloyd, 64 Md. 306, 1 Atl. 845, 6 Atl. 171.

53 Grimball v. Cruse, 70 Ala. 534; Lombard v. Witbeck, 173 Ill. 396, 51 N. E. 61; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949; Clifford v. Stewart, 95 Me. 38, 49 Atl. 52; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Attorney General v. Moore's Exrs., 19 N. J. Eq. 503; Walker v. Killian, 62 S. C. 482, 40 S. E. 887; Jones v. Knappen,

ance to the personal representative for all expenses necessarily incurred by him in the faithful performance of his duties, and such expenses include counsel fees. This is a power vested in the court of equity which is not dependent upon the statutes with relation to costs.54 And it is held that where proceedings to construe the will are made necessary because of the failure of the testator to give definite instructions in his will, costs and counsel fees of both parties may be directed to be paid out of the estate.55 The determination of the allowance to be made, however, is judicial in character and incident to the determination of the cause; it must therefore be fixed by the court and not left to the agreement of the parties.

If the action is not, strictly speaking, one for the construction of the will or to contest its validity, the mere fact that the validity of the will or its meaning is a vital issue in the case does not authorize the losing party to have his taxable costs paid out of the estate. In such a case the stipulation of the attorneys for the representative that such costs be paid out of the trust funds is of no effect. A trustee can not give away trust property which it is his duty to protect.57

63 Vt. 391, 14 L. R. A. 293, 22 Atl. 630.

54 Wetmore v. Parker, 52 N. Y. 450, 466.

55 Jacobus' Exr. v. Jacobus, 20 N. J. Eq. 49.

See, also, Charter v. Charter, L. R. 7 H. L. 364, 382; Morse v. Stearns, 131 Mass. 389,

56 Horton v. Upham, 72 Conn. 29, 43 Atl. 492.

57 Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650.

See, also, Kingsbury v. Buck ner, 134 U. S. 650, 33 L. Ed. 1047, 10 Sup. Ct. 638; Fischer v. Fischer, 54 Ill. 231; Craw v. Craw, 210 III. 246, 71 N. E. 450.

§ 1565. The Same Subject: Allowance Made Only When the Proceeding Is Brought in Good Faith.

The rule that the court may make an allowance for costs and counsel fees in a suit to construe the will applies only in those cases where the facts show that the proceeding was necessary, and the rule does not apply where a frivolous suit is instituted.58 A legatee who in bad faith institutes proceedings for the construction of a will is not entitled to have his attorney fees paid out of the estate;59 nor will such an allowance be made to an unsuccessful litigant where the will is not in fact ambiguous."0

The allowance above mentioned will be made only where the actual purpose of the proceeding is to construe the will. Should the widow as executrix institute a proceeding which in effect is merely one to determine whether she is entitled to certain specific legacies, and the opposing parties be represented by separate counsel and contest their hostile interests, the attorney fees of each party should be paid by them individually and not charged against the estate. And although the executor institute such proceedings in good faith, yet if the proceeding result in a contest between the heir and a beneficiary under the will regarding rights in certain property of the estate, the unsuccessful party is not entitled to have his taxable costs or counsel fees paid out of the funds of the estate. 62

§ 1566. Personal Representative Not Allowed Attorney Fees for Litigation Which Is Result of His Own Wrong. A personal representative can neither take advantage of his own wrong nor charge the estate with costs or counsel fees because of litigation brought about by his misconduct or neglect of duty. The general rule is that if an interested party, because of delay, neglect, fraud or any wrongful act on the part of the personal representative, is justified in instituting proceedings against him, the representative is not entitled to an allowance for counsel fees in defending himself against his own wrong,63 Where litigation arises because of neglect of duty on the part of the personal representative, he is not entitled to an allowance for counsel fees for services rendered in such matter, as where, because of unreasonable and wilful delay on the part of the representative to account, interested parties are compelled to bring an action against him to enforce a settlement.64 And the rule is the same if the representative incurs the expense of counsel fees in unnecessary litigation or in litigation which is caused because of delay on his part amounting to neglect of duty.65 Failure to comply with an order of court is a neglect of duty, and if the personal representative refuse to comply with an order decreeing distribution, he should be held personally chargeable with the costs incurred in further litigation made necessary by his neglect."

63 Anderson's Exr, v. Anderson's Heirs, 37 Ala. 683; Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12; Lilly v. Griffin, 71 Ga. 535; Armstrong v. Boyd, 140 Ga. 710, 79 S. E. 780; Matter of O'Brien, 145 N. Y. 379, 40 N. E. 18.

64 Allen v. Royster, 107 N. C. 278, 12 S. E. 134.

65 Beatty v. Trustees of Cory Universalist Soc., 39 N. J. Eq. 452. 66 In re Warner's Estate (Appeal of Osburn), 130 Pa. St. 359, 18 Atl. 897.