Drake v. Muse, Currie & Kohen, 18699

• Decision Date: 30 October 1975
• Docket Number: No. 18699,18699
• Citation: 532 S.W.2d 369
• Court: Texas Court of Appeals
• Parties: Millard L. DRAKE, Appellant, v. MUSE, CURRIE & KOHEN, Appellees.

Page 369

532 S.W.2d 369

Millard L. DRAKE, Appellant, v. MUSE, CURRIE & KOHEN, Appellees.

No. 18699.

Court of Civil Appeals of Texas Dallas.

Oct. 30, 1975.

Rehearing Denied Nov. 26, 1975.

Roy J. True, Dallas, for appellant.

Ralph W. Currie, Currie & Neilon, Dallas, for appellees.

CLAUDE WILLIAMS, Chief Justice.

Elizabeth Holt, administratrix of the estate of Eugene Dixon Duncan, deceased, applied to the probate court of Dallas County, Texas, for authorization to pay attorney's fees to the law firm of Muse, Currie & Kohen for services rendered to the administratrix in contesting an application to probate a will of Eugene Dixon Duncan, which had previously been admitted to probate in the state of New Hampshire and to substitute Millard L. Drake, the executor named in the New Hampshire will, for the administratrix. Drake opposed the claim, contending that attorney's fees were not legally allowable under Tex.Prob.Code Ann. § 242 (Vernon 1956). The probate court approved the claim in the amount of $12,771.10 and directed that amount be paid as an expense of administration. From that order, Drake appeals. We hold that the claim for attorney's fees, under the facts of this case, is not allowable and, therefore, reverse and render judgment.

This is a case of first impression and presents this question: whether an administratrix, in her official capacity, has the duty to contest an application to probate a foreign will. All parties agree that an administratrix has the right to contest such an application. Appellant contends that, absent a duty to contest, the administratrix may not claim attorney's fees for expenses incurred in the contest of the foreign will. We agree.

Appellees presented a claim to the administratrix for legal services rendered on behalf of the estate. Such claim was limited to services performed in connection with their opposition to an application by appellant Drake, a resident of Massachusetts, to probate, as a foreign will, a written instrument previously admitted to probate in the state of New Hampshire. The claim presented set forth in detail the exact services rendered. Drake does not contest the reasonableness of the fee. The administratrix allowed the claim without change. Appellant Drake filed his objection to the claim, alleging that the services rendered were 'not in connection with the administration of the estate herein' and did not benefit the estate, but rather benefitted the administratrix as an heir-at-law.

Jurisdictional Questions

We are confronted with two counterpoints attacking the jurisdiction of this court to hear the appeal. Appellees contend that the court lacks jurisdiction for these reasons: (1) Appellant failed to observe the jurisdictional requirements of Tex.R.Civ.P. 333 requiring that an appeal bond be filed within fifteen days after date of the order appealed from, and (2) appellant failed to observe the jurisdictional requirements of rule 336 which provides that the transcript, on appeal from the probate court to the district court, must be filed within thirty days from the date of the order appealed from.

The judgment of the probate court allowing the claim for attorney's fees was signed on March 26, 1975. Notice of appeal to the court of civil appeals was duly made and filed on April 2, 1975. On April 22, 1975, appellant Drake deposited the sum of thirty dollars in cash with the county clerk of Dallas County, Texas, 'in accordance with Rule 354, Rules of Practice and Procedure in Civil Actions, in lieu of a cost bond, appealing said costs to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, sitting at Dallas, Texas.' Thereafter on May 23, 1975, the transcript was filed in this court.

It is apparent from the record that appellant gave timely notice of appeal to the court of civil appeals and, twenty-seven days after the order appealed from, made a cash deposit in lieu of appeal bond, thereby complying with the requirements of Tex.R.Civ.P. 354, providing for a cost bond in cases appealed to the court of civil appeals. The record also reveals that, within sixty days from the order appealed from, appellant filed the transcript in this court in accordance with Tex.R.Civ.P. 386. Appellant contends, however, that the appeal of this case was governed not by Tex.R.Civ.P. 354 and 358, but rather by Tex.R.Civ.P. 333 and 336.

Prior to 1973, appeals from probate proceedings were to district courts, where the issues were tried De novo. However, in 1973, the legislature of Texas amended § 5 of the Texas Probate Code and thereby directed that final orders in probate matters shall be appealed to the courts of civil appeals. The question presented is whether the procedure to be followed in taking an appeal from the probate court to the court of civil appeals is now governed by rules 333 and 336 which governed appeals from the probate courts to district courts, or whether such appeal shall be governed by the rules applicable to other civil cases appealed to the court of civil appeals. We hold that, as a result of the legislative enactment of new § 5 of the Probate Code, rules 333 and 336 are no longer applicable and that appellant has properly complied with rules 354 and 386. ¹

When a rule of civil procedure promulgated by the supreme court conflicts with a legislative enactment, the rule must yield. Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424, 425 (Tex.1971). The amendment to Tex.Prob.Code Ann. § 5 (Vernon Supp.1974) stated that final orders in probate matters 'shall be appealable to the courts of (civil) appeals.' The rules appellees assert as controlling are found in the section captioned 'Review of District Courts of County Courts Rulings.' While we do not hold that captions to the Texas Rules of Civil Procedure have the full force of law, we do accept the captions as directive, and we do not hesitate to consider them as aids in interpreting the meaning and applicability of the rules. Furthermore, to sustain appellee's argument that rules 333 and 336 are controlling, we would be required to change the wording of those rules. Both rules make repeated references to dealing with the clerk of the district court and to powers which a district court may exercise in these matters. The language of these two rules unquestionably contemplates that they are applicable to an appeal to the district court. It is not within our authority to alter the wording of these rules in order that they convey the meaning appellees would impose upon them. It is significant that the legislature chose to amend the statute, in accordance with the constitutional amendment, without setting forth rules or even alluding to the rules of appellate procedure which would be applicable. When the legislature vests jurisdiction in the court of civil appeals and does not provide to the contrary, the general rules of procedure for perfecting appeal in the court of civil appeals apply by necessary implication. We hold, therefore, that appellant perfected his appeal under the applicable rules of procedure and that this court has jurisdiction of the appeal.

Action on Former Appeal

Appellees also contend that the right of the administratrix to charge the estate with expenses of contesting the foreign will has been settled by this court's refusal to dismiss a former appeal. We cannot agree.

The contest of the foreign will was tried in the probate court and appealed to the district court. Where the will was admitted to probate, an appeal was then taken to this court from that judgment of the district court. While the appeal was pending in this court, Drake filed a motion to dismiss in which he asserted that the appeal was not taken by the administratrix in her official capacity but was, in fact and in law, an appeal in her personal capacity and interest so that she would be required to post bond. We overruled this motion to dismiss the appeal. Appellees now assert that by our action in overruling the motion to dismiss, we impliedly held that the administratrix has a duty to appeal in her fiduciary capacity under the circumstances of this case and thereby implied that the legal services rendered were proper expenses of administration. We do not agree. The hearing on the motion was not a hearing on the merits. In refusing to dismiss the appeal, we recognized that Holt, as administratrix did have a right to appeal as an interested party. However, we did not say, nor can it be implied, that we held that an administratrix has a duty to appeal under the circumstances presented. Our action on that motion does not make any issues now presented Res judicata.

Administratrix's Attorney's Fees in Foreign Will Contest

We come now to the question of first impression presented by appellant: Does an administratrix of an estate in Texas have the authority to charge the estate of the decedent for attorney's fees incurred by the administratrix in contesting an executor's application to probate a foreign will of the decedent on the ground that the judgment of the sister state is not entitled to full faith and credit?

The record is uncontroverted that Millard L. Drake, as executor of Eugene Dixon Duncan, probated Duncan's will in the state of New Hampshire. Prior thereto, Elizabeth...