Estate of Berthol

This is an appeal from an order allowing respondent’s testate, who was one of the nominated executors under the last will of Therese Berthol, deceased, expenses incurred by such executor in resisting a contest against the probate of her will. Said nominated executor—Joseph Morcel—was made the principal beneficiary under the will and petitioned for its probate, whereupon a contest against the probate was filed by the daughter and only next of kin of deceased on the ground of alleged undue influence exercised by said Morcel upon the deceased to procure the execution of the will in his favor. The verdict of the jury on the trial of the contest was in favor of the contestant on that ground and the judgment was entered denying probate of the will therefor. Thereafter the motion of said Morcel for a new trial being denied, he appealed therefrom and from the judgment.

Subsequently, an administratrix of the estate of said Therese Berthol having been appointed, said Morcel applied to the superior court for an allowance out of her estate of his expenses incurred as nominated executor in the contest of the will on the ground that these expenditures were made in. good 'faith. Pending this…