Dyess v. Rowe

• Decision Date: 12 May 1915
• Docket Number: (No. 5476.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 177 S.W. 523
• Parties: DYESS et al. v. ROWE.
• Court: Texas Court of Appeals

177 S.W. 523

DYESS et al. v. ROWE.

(No. 5476.)^†

Court of Civil Appeals of Texas. San Antonio.

May 12, 1915.

Rehearing Denied June 16, 1915.

Appeal from District Court, Wharton County; Sam'l J. Styles, Judge.

Claim for attorney's fees by S. P. Rowe, as administrator, was allowed, and A. D. Dyess and another, who objected, appealed to the district court. From a judgment there allowing the full claim, they again appeal. Reversed and rendered.

Durrett & Dyess and Edmund Heinsohn, all of Temple, and H. A. Cline and John A. Barclay, both of Wharton, for appellants. D. F. Rowe, Leonard Doughty, and John A. Ballowe, all of Houston, and G. G. Kelley and W. L. Hall, both of Wharton, for appellee.

FLY, C. J.

The record in this case indicates that appellants own a half interest in the estate of John T. and Josephine B. Rowe, deceased, and are contesting the claim of appellee, the administrator of the estate, for $1,000 claimed to have been incurred for attorney's fees. The claim was approved by the county court, and the cause was appealed by appellants to the district court, where judgment for the full amount of the claim was rendered. From that judgment this appeal has been perfected.

The evidence shows that appellee had employed three attorneys, to whom he was to pay, one $400, one $350, and another $250, making in the aggregate $1,000. The estate is valued at $15,000 or $16,000. The fees were to be paid for services performed in a contest between S. P. Hill and appellee for the place of administrator, and in the contest as to withdrawing the estate from administration, and also for services in establishing a claim by appellee as an individual for $7,000 against the estate. It was stated by the attorneys that they were representing the estate, but the facts show that they were representing all the claims against the estate made by appellee as an individual, as well as the administratorship.

It has been held in some states that executors or administrators would be entitled to reimbursement for attorney's fees expended in good faith in establishing or resisting a will, or in maintaining an administration. The test, it is held, must be that the fees were expended for the benefit of the estate, or those ultimately entitled to the property. Woerner, Am. Law of Administration, § 517. The fees involved in this case were not incurred by an administrator in defending the estate against the claims of some outside party, but as against an heir to half the property, to prevent him from being appointed administrator, and to prevent the administration from being withdrawn. The evidence fails to show that the contest for the administratorship was in the interest of the estate, but indicates it was rather in the interest of appellee, and even under the rule adopted in some states, appellee should not have recovered the attorney's fees.

There is no provision in the statutes of Texas for the payment of expenses incurred in the contest of an administration. The statute authorizes a contest of an application for administration by any person interested in an estate, and it will not be contended that if such contest is successful that the person applying for administration would have any claim against the estate for fees paid to his attorney for services rendered in the contest. Such fees would be the debt of the applicant for letters and not that of the estate, because it is a debt not authorized by the estate or any one qualified to act for it. The applicant would hold no higher position than the contestant, and though the applicant may have been the winner in the contest, we are unable to see that his attitude toward the estate, before the appointment, was changed. If the successful party in the contest could make the estate pay for the contest, it puts the opposing party at a disadvantage seemingly not contemplated by the statute. There is no authority in Texas directly on this point, the Supreme Court having only held that an executor or administrator has the authority to employ an attorney to represent the estate "while in course of administration by him." Callaghan v. Grenet, 66 Tex. 236, 18 S. W. 507. The statute provides for the payment of "reasonable expenses necessarily incurred by them in the preservation, safe-keeping, and management of the estate and reasonable attorney's fees that may be necessarily incurred by them in the course of the administration," and while courts have allowed attorney's fees for filing an application for letters, it is as far as the courts of Texas have gone. It seems like an unwarranted expansion of the term "expenses of administration" to extend it to counsel fees incurred in a contest, between an heir and a person who has bought the interests of other heirs, for the administration of an estate. If the counsel fees of one should be paid, why not the other? In this case we have a concrete example of what may be expected if such claims are sustained. Three attorneys were employed, at an expense of $1,000, to obtain letters of administration, nothing more, if appellee's theory of the evidence be correct. For such purposes one attorney or firm would, it seems, be amply sufficient to perform the service mentioned, at a much less fee than was given to either of the attorneys in this case. For such service it may be permissible...