Clark v. Clark

• Decision Date: 08 April 1971
• Docket Number: 4 Div. 345
• Citation: 287 Ala. 42,247 So.2d 361
• Parties: Reba Turner CLARK v. William Orester CLARK et al.
• Court: Alabama Supreme Court

Page 361

247 So.2d 361

287 Ala. 42

Reba Turner CLARK v. William Orester CLARK et al.

4 Div. 345.

Supreme Court of Alabama.

April 8, 1971.

Rehearing Denied May 6, 1971.

W. J. Williamson, Greenville, for appellant.

James M. Prestwood, Andalusia, for William Orester Clark, Foster Quinton Clark, Readie Faye Miller and Wilma Birdie Mack.

Robert B. Albritton and Hiram J. Brogden, Jr., Andalusia, for J. B. Simmons as Executor of the estate of Bury Clark, deceased. LAWSON, Justice.

Bury Clark, a resident of Covington County, died testate in October, 1963, survived by his widow, Reba Turner Clark, and by five children of a former marriage.

J. B. Simmons was nominated as executor by Bury Clark in his last will, dated January 10, 1961, to which a codicil was added on August 27, 1963. Letters testamentary were granted to Simmons by the Probate Court of Convington County on December 10, 1963, the day on which the will was admitted to probate.

Two of the children filed a bill in the Circuit Court of Covington County, in Equity, against the other children and against Mrs. Reba Turner Clark and J. B. Simmons, contesting the will dated January 10, 1961. In that bill as finally amended all five of the children were named as complainants and Mrs. Reba Turner Clark and J. B. Simmons, as executor under the will of Bury Clark, were the only respondents. In the bill as last amended the complainants therein challenged the validity of the will under date of January 10, 1961, on the ground of undue influence exerted over the testator by his wife, Reba Turner clark, and on the further ground that the codicil dated August 27, 1963, revoked the will dated January 10, 1961, and revived a prior will dated December 20, 1960. The will contest was docketed in the equity court as Case No. 6138.

There was a trial before a jury, which ended in a mistrial. On the next trial the jury returned a general verdict in favor of the contestants. The trial court rendered a final decree in accord with the jury verdict.

The respondents, Reba Turner Clark and J. B. Simmons, appealed to this court.--Clark et al. v. Clark et al., 280 Ala. 644, 197 So.2d 447. Our opinion in that case concludes:

'* * * It is our conclusion that the evidence is insufficient to support the jury's conclusion on either issue submitted.

'Reversed and rendered. (see Little v. Little, 209 Ala. 651, 96 So. 928.)'

In the decree rendered here we reversed and annulled the 'judgment' from which the appeal was taken and we dismissed the 'bill of complaint filed by the contestants.' The last paragraph of our decree reads:

'IT IS FURTHER ORDERED AND ADJUDGED that the appellees, Williams Orester Clark, Foster Quinton Clark, Ossie Lee Sasser, Readie Faye Miller and Wilma Birdie Mack, pay the costs accruing on said appeal in this Court and in the court below, And all costs in the Circuit Court, for which costs let execution issue.' (Emphasis supplied)

After we had overruled the application for rehearing in Clark et al. v. Clark et al., Supra (April 13, 1967), Mrs. Reba Turner Clark on May 15, 1967, filed in the Circuit Court of Covington County, in Equity, a 'Motion for Reference and Taxing of Costs,' wherein she asked, among other things, that the trial court order the Register to hold a reference to determine the amount of the attorneys' fees which should be allowed the executor for services rendered to him by the attorneys in his defense of the will contest case. That motion also requested the trial court to tax the costs of the will contest case (Case No. 6138), including such attorneys' fees, against the contestants.

Action on that motion was continued by the trial court until date of final settlement of the estate of Bury Clark. The administration of that estate had been removed to the equity court, where it was docketed as Case No. 6299.

Thereafter J. B. Simmons, as executor, filed his report and petition for final settlement of his administration of the estate of Bury Clark, deceased. In his said petition the executor pointed out that the trial court had previously deferred all questions of attorneys' fees in the will contest case (Case No. 6138) until final settlement and averred that said attorneys' fees in the will contest case (Case No. 6138) should be taxed as court costs, which costs should be taxed against the interests of the contestants in the will contest case (Case No. 6138). In his said petition the executor also asked that the trial court set a reasonable attorneys' fee to be allowed his attorneys for their services in connection with the general administration of the estate.

The trial court did not order a reference, but proceeded to take evidence on several occasions on the matters set forth in the executor's petition for final settlement and all other matters pending for final settlement in Case No. 6299 and on the motion of Reba Turner Clark to tax the attorneys' fees incurred by the executor in the will contest case (Case No. 6138) to the contestants.

On December 13, 1968, the trial court rendered a joint decree covering both cases, that is, Case No. 6138 and Case No. 6299, which decree in pertinent parts reads as follows:

'It is the judgment of the Court that all of the expenses of the administration of the estate including attorney's fee both for the administration of the estate and for the executor's attorneys representing him on the contest of the will, which contest was tried in a separate lawsuit in case number 6138 in the Circuit Court of this County and including taxes and estate taxes and various other claims hereinafter mentioned should all be paid by the executor from the properties embraced within the terms of the residuary clause of the will of the testator, Bury Clark, and it is so Ordered and Adjudged by the Court.

'The Court takes judicial notice of its own records and of the records of the Supreme Court of the State of Alabama and is aware that the Supreme Court of Alabama has decreed that the costs of the contest of the will in case number 6128 (sic) be taxed against the complainants in that cause and, it is, therefore, Considered, Ordered, Adjudged and Decreed by the Court that there is hereby affixed a lien against the distributive shares of William Orester Clark Foster Quinten Clark, Ossie Lee Sasser, Readie Faye Miller, and Mrs. Birdie Mae Mack in favor of the Clerk of the Supreme Court and the Register of the Circuit Court in Equity of this County to the extent of all of the costs decreed by the Supreme Court of Alabama to be paid by each of the above-mentioned parties.'

The trial court fixed the sum of $14,000 as the fee for the executor's attorneys for their services rendered in connection with the will contest case, that is, Case No. 6138, and fixed the sum of $3,500 as the fee for those attorneys for representing the executor in the administration of the estate of Bury Clark, deceased, Case No. 6299.

Mrs. Reba Turner Clark has appealed to this court from the decree of December 13, 1968, and has made eleven assignments of error.

Assignments of Error numbered 1 through 8 are all to the effect that the trial court erred in ordering the executor to pay the attorneys who represented him in the defense of the will contest case (Case No. 6138) the sum of $14,000 'from the properties embraced with the terms of the residuary clause of the will of the testator, Bury Clark, * * *'

In so ordering, the trial court requires Mrs. Reba Turner Clark to defray the cost of paying the executor's attorneys for their services rendered in the will contest case, inasmuch as the 'residuary clause' referred to in the trial court's decree is included in Item Sixth of the will and Mrs. Clark is the only person named therein to receive the residuary estate. That Item reads:

'Exclusive of some Savings Bonds, on the face of which I have clearly designated to whom they shall go, and exclusive of the stocks listed in Paragraph Fifth above, and the checking account dealt with in Paragraph Fourth above, I hereby give, devise and bequeath unto Reba Turner Clark, all the rest and residue of all the property, real, personal or mixed, that I may own at the time of my death, or in which I may own an interest at the time of my death.'

We have heretofore observed that Mrs. Reba Turner Clark and the executor both took the position in their pleadings that the fees due the attorneys who represented the executor in the will contest case should be taxed as costs against the contestants in that case, the appellees here.

It is obvious that the trial court did not consider that such fees should be taxed against the contestants as costs, since it taxed the costs of the will contest case against contestants in accordance with our action in Clark v. Clark, Supra, and yet ordered such fees to be paid by the executor out of the residuary estate.

Our action in taxing the costs against the contestants, the appellees, in Clark v. Clark, Supra, was in keeping with the following language of § 59, Title 61, Code 1940: 'The costs of any contest under the provisions if this article must be paid by the party contesting, if he fails; * * *' Section 59, Title 61, Supra, is a part of Article 3, Chapter 1, Title 61, Code, which authorizes the filing of a contest in equity under certain circumstances. It follows that there is no merit in appellees' contention that the provisions of § 59, Title 61, last quoted above, have no application to this case because said § 59, Title 61, Code, relates to will contests in a Probate Court.' In Ex parte Winn, 226 Ala. 447, 147 So. 625, we held the provisions of § 10625, Code 1923, the progenitor of § 59, Title 61, Code, to be applicable to a will contest which the original transcript discloses was filed in the Probate Court of DeKalb County but was later transferred to the law side of the Circuit Court under the provisions of § 10636, Code 1923, now § 63, Title 61, Code, as amended. See Stanley v. Beck, 242 Ala. 574, 7 So.2d 276, where we...