Clarksdale Hospital v. Wallis

• Citation: 193 So. 627,187 Miss. 834
• Decision Date: 12 February 1940
• Docket Number: 34045
• Court: United States State Supreme Court of Mississippi
• Parties: CLARKSDALE HOSPITAL v. WALLIS et al

193 So. 627

187 Miss. 834

CLARKSDALE HOSPITAL v. WALLIS et al

No. 34045

Supreme Court of Mississippi, Division A

February 12, 1940

Suggestion Of Error Overruled March 25, 1940.

APPEAL from the chancery court of Coahoma county HON. R. E. JACKSON Chancellor.

Proceeding in the matter of the estate of Mrs. Martha (Mattie) Johnson deceased, wherein the Clarksdale Hospital filed a claim which was opposed by J. O. Wallis, Sr., executor, and others. From a decree disallowing the claim, the Clarksdale Hospital appeals. Affirmed.

Affirmed.

Vincent J. Brocato and E. W. Smith, both of Clarksdale, for appellant.

In the instant case, it is uncontradicted that Mrs. Johnson intended that the Clarksdale Hospital should have the full amount of its specific bequest. Through no fault of this appellant, and due to agencies and factors to whom it protested, and over whom it had no influence or control, and in order that the will of their benefactor might be effectuated, it was forced to secure the services of an attorney.

He must be paid. Who then should be forced to bear this added expense and consequent depletion of the specific bequest? If the proponent, the will of the testatrix is defeated for the bequest is diminished proportionately thereby. If the estate the will of the testatrix lives in death, for the residuum becomes the primary fund for the discharge of expenses. This is as intended by the testatrix.

Sawyer v. Baldwin, 37 Mass. 378; In re Eatley's will, 89 A. 776; In re Gordon's will, 111 A. 610; Succession of Beauregard, 49 La. Ann. 250, 22 So. 348; Singer v. Taylor, 91 Kan. 190, 137 P. 931; Smith et al. v. Haire et al., 197 S.W. 678, Ann. Cas., 1916D, 529; Everson v. Hearne (Neb.), 131 N.W. 1130; Beer et al. v. Squires et al. (Conn.), 129 A. 382; Cooke v. Womans College of Pa., 82 N.J. Eq. 179, 87 A. 131; McCormic v. Hall et al., 337 Ill. 332, 168 N.E. 900; Moore v. Alden, 80 Me. 301, 6 Am. St. Rep. 203; Lassiter et ux. v. Travis et ux., 39 S.W. 226.

The allowance of such costs, attorney's fee and expenses in such case as this is inherent in a court of equity and independent of statutory enactment. It is grounded in the theorem oft repeated that an ambiguity created by the testatrix should be removed by the residuary estate of such testatrix, if such exists, and not at the expense of the legacy.

An immeasurable stronger cause exists for the allowance of counsel fees in instances to successful proponents. In such instances the proponents seeks to uphold and validate the provision of the will. It is their purpose that the intention of the testator should control and be given full force and effect. Why, therefore, should a person successfully propounding the provisions of a will be forced to pay for the privilege of seeing the will of the testator effectuate after her death?

As in the instant case, upon the shoulders of counsel for proponent has fallen largely the task of establishing this provision of the will of Mrs. Johnson. Upon the shoulders of counsel for proponent has fallen the brunt of the removal of this ambiguity of the will. This ambiguity, if such exists, was created by the testatrix herself. Yet the executor hesitated to follow the mandate of the will and there was injected controversial issues by the executor and certain devisees to the construction thereof. It is certainly only equitable and fair that the provisions of the will should be given full force and effect and that those espousing the will and its provisions should not be forced to pay for the privilege of seeing that the will of the testatrix should live after her death.

Guerin v. Guerin, 110 N.E. 402; Alford v. Bennett, 279 Ill. 375, 117 N.E. 89; Haight v. Royce et al., 274 Ill. 162, 113 N.E. 71; Ingraham v. Ingraham, 169 Ill. 432, 48 N.E. 561, 49 N.E. 320; Womens' Union Missionary Society v. Mead, 131 Ill. 33, 23 N.E. 603; Lombard v. Witbeck, 173 Ill. 396, 51 N.E. 61; Merill v. Winchester, 120 Me. 203, 113 A. 261; Luttgen v. Tiffany et al., 95 A. 847; Bioren v. Nesler et al., 76 N.J. 576, 74 A. 791.

The following cases support the doctrine that proponents are entitled to allowance of counsel fees, court costs and expenses incurred.

In re Coleman's Will, 88 N.J. Eq. 284, 103 A. 521; In re Winston's Will, 172 N.C. 270, 90 S.E. 201; In re Johnson's Will, 100 Ore. 142, 196 P. 1115; In re Moore's Will, 114 Ore. 444, 236 P. 265; McMillan, Executor, v. McElroy, 186 Ky. 644, 217 S.W. 927; Hilyard v. Wood, 71 N.J. Eq. 214, 63 A. 7; Miller v. Von Schwartzenstein, 64 N.Y.S. 475; In re Simon's Will, 55 Conn. 239, 11 A. 36; Reed v. Cramer, 118 Me. 317, 108 A. 82; In re Berthol's Estate, 163 Cal. 343, 125 P. 750; In re Roarke's Estate, 8 Ariz. 16, 68 P. 527.

There seems to be no reported decision in Mississippi affecting the question presented, and only one case insofar as we have been able to find in which such an issue was drawn. That case is the case of Guess v. Strahan, 106 Miss. 1, 63 So. 313, in which the court refused to allow counsel fees to unsuccessful contestants on the ground that no ambiguities existed in the will, there was no bona fide and actual controversy between the parties and no services were rendered the executor of the estate. The syllabus in that case is to the effect: "'Where there is nothing ambiguous in a will and the executor was perfectly willing to carry out its provisions and has not asked for its construction and no difference has arisen between the beneficiaries as to its construction, the court will not entertain a bill to construe such will, nor allow petitioner's attorney fees to be taxed against the estate, " and thus, impliedly recognizes the doctrine that had there been an actual and bona fide contest and a serious controversy, had any ambiguities obtained in the will, had any services been rendered which materially benefited the estate, then in that instance the court would have entertained a motion for the allowance thereof.

Brewer & Sisson, Tom T. Ross, Roberson & Luckett, and Maynard, Fitzgerald & Maynard, all of Clarksdale, for appellees.

Attorney's fees for services in connection with an estate are not debts of the estate.

Clopton v. Gholson, 53 Miss. 466; Code of 1930, Sec. 1734; Reedy v. Allen, 179 So. 569, 181 Miss. 471.

Attorneys' fees are not recoverable unless facts are of such gross or wilful wrong as to justify the infliction of punitive damages.

Cooper v. U.S. F. & G. Co. (Miss.), 188 So. 6.

No allowance may be made out of the estate of a deceased person for the services of an attorney not employed by the personal representative of the estate, where the services were rendered for the sole benefit of an individual interested in the estate.

79 A.L.R. 522; Arell v. Marsteller, 2 Cranch, C. C. 11, Fed. Cas. No. 514; Hearrin v. Savage, 16 Ala. 286; Pinckard v. Pinckard, 24 Ala. 250; Parker v. Parker, 99 Ala. 239; 42 Am. St. Rep. 48, 13 So. 520; Foster v. Foster, 126 Ala. 257, 28 So. 624; Coker v. Coker, 208 Ala. 239, 94 So. 308; City Bank & T. Co. v. McCaa, 213 Ala. 579, 105 So. 669; Dent. v. Foy, 214 Ala. 243, 107 So. 210; Evatt v. Miller, 114 Ark. 84, L.R.A. 1916C, 759, 169 S.W. 817; McPaxton v. Dickson, 15 Ark. 97; Paget v. Brogan, 67 Ark. 522, 55 S.W. 938; ReWalden, 174 Cal. 776, 164 P. 639; Re Heeney, 3 Cal.App. 548, 86 P. 842; Re Lux, 134 Cal. 3, 66 P. 30; Re Currier, 19 Colo.App. 245, 74 P. 340; Simmons v. Hubbard, 50 Conn. 574; Re Simmons, 55 Conn. 239, 11 A. 36; Re Officer, 122 Iowa 553, 98 N.W. 314; Re Colburn, 186 Iowa 590, 173 N.W. 35; Dougherty v. Cummings, 20 Ky. L. Rep. 1948, 50 S.W. 551; Bailey v. Barclay, 109 Ky. 636, 60 S.W. 377; Girty v. Girty, 180 Ky. 786, 203 S.W. 730; McGoodwin v. Shelby, 181 Ky. 230, 204 S.W. 171, 182 Ky. 377, 206 S.W. 625; Sims v. Birdsong, 22 Ky. L. Rep. 1049, 59 S.W. 749; Hood v. Maxwell, 23 Ky. L. Rep. 1791, 66 S.W. 276; Clarke v. Garrison, 25 Ky. L. Rep. 1999, 79 S.W. 240; Hughes's Succession, 14 La. Ann. 876; Linton v. Moore, 4 La. 434; Delano's Succession, 125 La. 869, 51 So. 1019; Flater v. Weaver, 108 Md. 668, 71 A. 309; Bigelow v. Morong, 103 Mass. 287; Mulloney v. Barnes, 266 Mass. 50, 164 N.E. 917; Runkle v. Smith, 90 N.J. Eq. 478, 106 A. 474; Re Larrabee, 98 N.J. Eq. 655, 130 A. 195; Re Fulper, 99 N.J. Eq. 293, 132 A. 834; Lee v. Lee, 39 Barb. 172; Olsborne v. McAlpine, 4 Redf. 1; Re Meeker, 9 Daly 556; Re Smith, 1 Misc. 269, 22 N.Y.S. 1067; Re Kreidler, 68 Misc. 412, 7 Mills 559, 124 N.Y.S. 628; Re Vorndran, 132 Misc. 611, 230 N.Y.S. 326; Re Nockin, 15 N.Y.S. R. 731; Re Hartmann, 133 Misc. 739, 232 N.Y.S. 670; Gunning v. Lockman, 3 Redf. 273, 4 Abb. N. C. 173; Patterson v. Miller, 72 N.C. 516; Alexander v. Alexander, 120 N.C. 472, 27 S. Ex. 121; Re Gratton, 136 Ore. 224, 298 P. 231, 79 A.L.R. 517; Fields v. Fields (Ore.), 7 P.2d 975; Stephens's Appeal, 56 Pa. 409; Harrison's Estate, 221 Pa. 508, 70 A. 827; McCloskey's Estate, 12 Phila. 74, 35 Phila. Leg. Int. 153; Moore's Estate, 8 Pa. Co. Ct. 447; Di Orio v. Cantone, 49 R. I. 452, 144 A. 148.

No allowance may be made for services which were not beneficial to the estate as a whole, but were rendered for, and inured only to, the benefit of Clarksdale Hospital.

The general rule is that the right of an attorney at law to demand payment for his services depends on the fact of employment.

5 Am. Jur., par. 154, Attorneys at Law.

The general rule has generally been modified to permit allowances to attorneys whose services redounded to benefit of all persons interested in the estate and were beneficial to the estate.

79 A.L.R. 523, 525.

This modification of the general rule apparently does not prevail in Mississippi.

Rives v. Patty, 74 Miss. 381, 20 So. 862.

This modification of the general rule is limited to allowances for services which were beneficial to the whole class. It is...