Estate of Chittenden

This is an application on behalf of William and George Leviston for counsel fees for services rendered in probating the will of the testator.

The demurrer should be overruled. This case is to be distinguished from the Estate of Simmons ( 43 Cal. 548 ), decided in April, 1872, which applies only to an application for letters of administration, and refers to a class of cases where one is seeking for his own gain to exercise a privilege.

There is a distinction between executors and administrators. The executor is appointed by the will to carry out its provisions, under the supervision of the court, and the trust is conferred on him by that instrument. It is the duty of an executor to protect the beneficiaries named in the will, and this he' can do in no other way than by offering it for probate. If he do not renounce the trust he is bound to prove the will, and is not called upon to do it at his own expense. To do so properly he is necessarily obliged to employ counsel, and a counsel fee in that behalf is a proper charge against the estate.

The probate of the will by the executor is the performance of a duty and the fulfillment of a trust, and the payment of attorney’s fees just…