Barrett v. Parchman

• Citation: 675 S.W.2d 289
• Decision Date: 10 July 1984
• Docket Number: No. 05-82-01328-CV,05-82-01328-CV
• Parties: Billy Bob BARRETT, Appellant, v. Kristina PARCHMAN, Appellee.
• Court: Court of Appeals of Texas

Page 289

675 S.W.2d 289

Billy Bob BARRETT, Appellant, v. Kristina PARCHMAN, Appellee.

No. 05-82-01328-CV.

Court of Appeals of Texas,

Dallas.

July 10, 1984.

Jack W. Frieze, Irving, for appellant.

Robert N. Virden, Winn, Beaudry & Virden, Dallas, for appellee.

Before GUITTARD, C.J., and STOREY and GUILLOT, JJ.

GUITTARD, Chief Justice.

Billy Bob Barrett, the sole beneficiary under the will of Joyce Evelyn Barrett, appeals awards of a commission and attorneys' fees to Kristina Parchman, the temporary administratrix. He contends that the administratrix was not entitled to commission and that the attorneys' fees awarded were not reasonable and necessary. We agree in part with his second point of error and therefore reverse and remand.

Commission

The court awarded the temporary administratrix a $350.00 commission for her services to the estate. The record shows that she collected $6,813.63 from the deceased's credit union and one watch of undetermined value. Barrett contends that TEX.PROB.CODE ANN. § 241(a) (Vernon 1980) does not authorize a commission in this instance. This section establishes compensation of administrators at 5% of all sums collected but "no commission shall be allowed for receiving cash belonging to the testator or intestate which was on hand or on deposit to his credit in a bank at the time of his death." Because the administratrix's commission was based on 5% of cash deposited in a credit union, Barrett contends that this award violated section 241(a).

Section 241(a) also provides, however, that if the court finds that the commission as calculated is unreasonably low, it may award reasonable compensation for services. Under Barrett's interpretation, Parchman would be entitled to no compensation at all. We do not believe that, under these circumstances, an award of $350.00 would be unreasonable.

Furthermore, section 241(a) applies to compensation of administrators serving under regular letters of administration. Here, Parchman served as a temporary administratrix. In Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327, 329 (1939), the supreme court held that the compensation of a temporary administrator is not fixed by statute, but rather is left to the discretion of the trial court. Barrett contends that Huff is inapplicable because it concerned earlier and different statutes. However, both the earlier and present statutes provide for compensation of administrators, and neither mentions temporary administrators. See TEX.REV.CIV.STAT.ANN. arts. 3691, 3696 (1925). The rationale of Huff applies as much to the current statute as it did to the earlier versions. We are not persuaded that an award of $350.00 constitutes an abuse of discretion. Accordingly, Barrett's first ground of error is overruled.

Attorneys' Fees

Barrett contests the award of $6,273.00 in attorneys' fees. The court awarded this sum in three separate amounts to two different firms. Each award must be examined individually.

Barrett contests the award of $1,068.00 to Robert Power and Associates on the ground that no testimony as to the reasonableness or necessity of the services rendered was presented to the trial court. The temporary administratrix testified as to the nature of the services provided by this firm. However, no attorney testified as to the reasonableness and necessity of the services performed or as to the reasonableness of the amount requested. Even in a non-jury trial, evidence must be presented on these issues to support an award of attorneys' fees. Underhill v. Underhill, 614 S.W.2d 178, 181-182 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). This rule has been applied to probate cases under section 242. See, e.g., Griffin v. Barr, 587 S.W.2d 477, 478-79 (Tex.Civ.App.--Dallas 1979, no writ); Burton v. Bean, 549 S.W.2d 48, 51 (Tex.Civ.App.--El Paso 1977, no writ). The temporary administratrix introduced no probative evidence as to the reasonableness and necessity of the services rendered or the reasonableness of the amount requested. Therefore, we conclude that the evidence does not support the court's order awarding this fee.

The next award was to the firm of Winn, Beaudry and Virden for the period from September 28, 1981, through January 31, 1982, in the amount of $3,103.00. Robert Virden of the firm testified that the bulk of the work performed during this period was for the purpose of imposing a constructive trust on the assets of the estate on the theory that Barrett, the sole beneficiary under the will, had willfully caused the death of the decedent. This effort was unsuccessful, but the firm also investigated whether other assets belonged to the estate, such as life insurance, a house, and a car.

Barrett contends that these services were not compensable under TEX.PROB.CODE ANN. § 242 (Vernon 1980) which provides for reimbursement for "all reasonable attorney's fees, necessarily incurred in connection with the proceedings and management of such estate." We agree that the expenses incurred in attempting to impose a constructive trust over the assets of the estate were not necessarily incurred in the management of the estate. The order of July 10, 1980, appointing Parchman temporary administratrix specifically delineated the powers she was to exercise. This order only authorized the collection of estate assets. The order of July 1, 1980, admitting the will to probate noted that there was no need for administration. The only duty left the temporary administratrix after that date was the preparation and submission of a final account.

Any action taken by a temporary administratrix, not expressly authorized, is void. TEX.PROB.CODE ANN. § 133 (Vernon 1980). Therefore, actions by an administrator not authorized by delineated powers or legal duty to the estate are not compensable. Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 374-75 (Tex.Civ.App.--Dallas 1975, writ ref'd n.r.e.). Although Parchman was authorized to collect the estate assets, she was not authorized to pursue the imposition of a constructive trust over the assets of the estate, particularly after July 1, when the court found no further need for administration. Since there was no longer a reason for administration, she had no duties to perform....