State Ex Rel. Hill v. District Court of Second Judicial District , 126 Mont. 1 ( 1952 )

MR. JUSTICE FREEBOURN:

This is a contest between George U. Hill, cashier of the First National Bank of Butte, and J. W. Rees, cashier of the First National Bank of Dillon, to determine which shall be executor of the last will and testament of Anna Huber Thompson, deceased.

The will was made on July 21, 1937, naming Hill as executor,, Three codicils were executed. The second codicil, dated November 8, 1947, named Hill as executor, with the proviso that if he did not qualify Rees would be executor. The third codicil, dated July 26, 1949, named Rees the sole executor.

The testatrix died at Dillon, Beaverhead county, Montana, on February 3, 1951. In separate proceedings Hill and Rees filed for probate of decedent’s will. The will filed by Rees included the three codicils, while the will filed by Hill included the first two codicils, but left out the last codicil naming Rees as sole executor.

Hill appeared contesting and opposing Rees’s petition for the probate of the will and three codicils on the ground that the testatrix was incompetent when she made the third and last codicil. The district judge of Beaverhead county being disqualified, the matters were transferred to Silver Bow county.

Rees’s demurrer to Hill’s written grounds of opposition to the probate of the will and codicils filed by Rees was sustained by the Silver Bow district court for the reason "that said George U. Hill is not a person interested in said estate, having the legal capacity to contest or oppose the probate” of the will.

Hill applied to this court for and was granted an alternative writ of mandate directing the Silver Bow county district court to set aside its ruling on the demurrer or show cause why the same should not be done. This matter, as well as the lower court’s motion to quash the writ, were argued thereafter in this court.

That part of E. C. M. 1947, see. 91-810, relevant here, provides: “* * * Any person interested may appear and contest the will. * * *”

In the case of In re Pepin’s Estate, 53 Mont. 240, 163 Pac. 104, 105, this court, in construing this same statute, 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 [1907, now R. C. M. 1947, sec. 91-1101]; State ex rel. Donovan v. Second Judicial District Court, 25 Mont. 355, 65 Pac. 120; Ingersoll v. Gourley, 72 Wash. 462, 130 Pac. 743; In re Wickersham’s Estate, 153 Cal. 603, 96 Pac. 311; In re Zollikofer’s Estate, 167 Cal. 196, 138 Pac. 995.”

“It is well settled that a proceeding for revocation of probate of a will cannot be maintained by any person unless he is in some way interested in the will. If he is a legal heir of the deceased, that constitutes a sufficient interest. But, if he is not an heir, he must show that he has some interest in the estate of the deceased which the will he attacks would jeopardize.” In re Zollikofer’s Estate, 167 Cal. 196, 138 Pac. 995, 996.

“ 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. That ‘interest’ which gives one standing to contest a will must be direct and pecuniary and such as to be affected by the probate of the will.” 1 Bancroft’s Probate Practice, 2d Ed., see. 171, p. 416.

“Under statutes which permit the contest of wills by persons interested or claiming to be interested in the decedent’s estate, the general rule is that a contestant must have some pecuniary or beneficial interest in the estate of the decedent that is detrimentally affected by the will. Although the right to maintain a will contest does not depend upon the extent or proportion of the contestant’s share in the decedent’s estate, or the amount of the detriment suffered by the contestant, it does depend upon the fact that the contestant may be deprived by the will of some interest of pecuniary value, worth, advantage, or use in the estate. The mere circumstance that a person may be interested in. the administration, distribution, or partition of an estate is not sufficient if he will not suffer any detriment from the will. As stated, an interest in the property of the estate detrimentally affected by the will is the foundation of the right to contest it.” 57 Am. Jur., Wills, sec. 798, pp. 541, 542.

This prohibition extends to a codicil which makes no change in a testamentary provision of the will, but only makes a change in the executor.

In the case of In re Estate of Meredith, 275 Mich. 278, 266 N. W. 351, 355, as reported in 104 A. L. R. 348, it is said: “No one who has no pecuniary interest in the estate may contest the appointment of the executor and trustee named in the codicil. In re Norton’s Appeal, 46 Conn. 527; In re Sanborn’s Estate, 98 Cal. 103, 32 Pac. 865; In re Beeder’s Estate, 10 Pa. 261; Shepard’s Estate, 170 Pa. 323, 32 A. 1040; Cornwell v. Cornwell, 11 Humph. [30 Tenn.] 485; In re Hickman’s Estate, 101 Cal. 609, 36 Pac. 118; Wynne, Ex’r, v. Spiers, 7 Humph. [26 Tenn.] 394; Bank of Tennessee v. Nelson, 3 Head [40 Tenn.] 634.

“It is only persons who might be injured by admitting the codicil * * * who may contest it. In re Coursen’s Wills, sec. 798, pp. 541, 542.

“An interest in the property of the estate affected by the will is the foundation of the right to contest it. Brewer v. Barrett, 58 Md. 587; Johnston v. Willis, 147 Md. 237, 127 A. 862.

‘ ‘ Tbe question involved here was before the court in Helfrich v. Yockel, 143 Md. 371, 122 A. 360, 361, 31 A. L. R. 323, where it is said: ‘ The exact question here presented, whether an executor whose appointment has been revoked by a subsequent will or by a codicil to the will by which he was appointed, can maintain caveat proceedings against the later will or the codicil revoking his appointment, when in the event of the annullment of the will or codicil the only benefit or advantage accruing to him therefrom would be the right to serve as executor and to receive in compensation for his services such commissions as might be allowed him, has never been before this court.’

“After discussing the case and the authorities, it is said: ‘The right conferred upon the appellant by the will, as first executed, and withdrawn from him by the codicil, to serve as executor and to receive commissions for his services as executor when rendered by him, cannot, we think, be regarded as an interest in the property and estate of the testator entitling him to caveat the codicil.’ See, also Johnston v. Willis, 147 Md. 237, 127 A. 862.

“® * * The persons named as executors and trustees by the testator have no such interest, in the estate as to permit them to agree to submit the testamentary capacity of testator to a third person for determination. Their agreement could not bind those who have a pecuniary interest in the estate. * * * But, if we go behind the order and investigate the facts, then it appears the executors of the last will and testament of the deceased have no such interest in the estate as entitles them, or any of them, to contest the admission to probate of the codicil to the will of deceased.”

In State ex rel. Eakins v. District Court, 34 Mont. 226, 229, 85 Pac. 1022, we held that a public administrator, who ■would be entitled to act and receive fees if there was no will, has no such interest as entitles him to object to the probate of a will.

In Re O’Brien’s Estate, 13 Wash. (2d) 581, 126 Pac. (2d) 47, 52, the supreme court of Washington in a well-written opinion by Justice Driver points out that the only case wherein it appears that it has been squarely held that executors nominated in a will could contest a later one, is In re Murphy’s Estate, 1922, 153 Minn. 60, 189 N. W. 413. The Washington court, in part, said: “Some times it happens that a later will makes no change at all in the disposition of the testator’s estate, but merely nominates a different executor. In such a case, why should the estate be burdened by will contest proceedings for the sole purpose of determining which of two rival claimants shall be permitted to act as executor?

“It is our conclusion that * * * the weight of authority and the better reasoning favor the rule that a will contest cannot be initiated by an executor named in a prior will.”

Since, if there were no will, Hill would not succeed in some degree to the decedent’s estate, he is not a person who may appear and contest the will.

The lower court, therefore, properly sustained Rees’s demurrer.

For the reasons stated the motion of the respondent court to quash the alternative writ of mandate is granted.

MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICE METCALF, concur.