Fickle v. Scampmorte, 30280

• Decision Date: 27 June 1962
• Docket Number: No. 30280,30280
• Parties: Vincent FICKLE, Carmella Kellum, Lucille Bodey, Jacqueline Spall, Vincent Cardamone, Frances Nicoletta, Jeanette Holland, Priscilla Roberta, Joseph Scampmorte, Administrator of the Estate of Frank Scampmorte, Deceased, Appellants, v. Joseph SCAMPMORTE, Frank, J. Scampmorte, Appellees.
• Court: Indiana Supreme Court

Page 838

183 N.E.2d 838

243 Ind. 165

Vincent FICKLE, Carmella Kellum, Lucille Bodey, Jacqueline Spall, Vincent Cardamone, Frances Nicoletta, Jeanette Holland, Priscilla Roberta, Joseph Scampmorte, Administrator of the Estate of Frank Scampmorte, Deceased, Appellants, v. Joseph SCAMPMORTE, Frank, J. Scampmorte, Appellees.

No. 30280.

Supreme Court of Indiana.

June 27, 1962.

Vincent Kelley, Kelley, Arnold & Kelley, Johnson & Austin, Conrad Arnkens, John Staggenburg, Anderson, for appellants.

Joan Bashaw, Robert L. Shearer, Bagot, Free & Shearer, Anderson, for Frank Scampmorte, appellee.

ARTERBURN, Chief Justice.

This case comes to us on petition to transfer from the Appellate Court under Acts 1901, ch. 247, § 10, p. 565; Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See Fickle v. Scampmorte (1961), Ind.App., 173 N.E.2d 73 for opinion of Appellate Court.

The question presented here on transfer is whether or not a trial court under the uniform Probate Code, § 7-414, may grant a reasonable allowance for attorney fees in proceedings to probate a will which have failed (Scampmorte v. Scampmorte (1962), Ind.App., 179 N.E.2d 302) and where the proponents of the will entered into a contingency fee contract with his attorney to pay such attorney if successful in probating the will. The Probate Code, Section 7-414, provides as follows:

'Allowance in will contest.--When any person designated as executor in a will, or the administrator with the will annexed, or if at any time there be no such representative, they any devisee therein, defends it or prosecutes any proceedings in good faith and with just cause for the purpose of having it admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements including reasonable attorney's fees in such proceedings. [Acts 1953, ch. 112, § 1014, p. 295.]'

This statute provides first, that where a will has been probated, those who have the right to defend a will shall be allowed fees and expenses for defending it. Secondly, where a purported will is offered for probate in good faith, those who have the prior right to prosecute its probate, regardless of success, shall be entitled to necessary fees and expenses. In the latter case this would be the executor named in the purported will and if none is named, the 'any devisee therein.' The appellee, Frank J. Scampmorte, in his verified petition alleged that there was no executor named in the purported will and that he was named as a devisee therein. (See also copy of will in Scampmorte v. Scampmorte (1962), Ind.App., 179 N.E.2d 302.)

The appellees do not deny such allegations in the petition, which accordingly must be accepted as true. No issue is made as to appellees' right to prosecute the proceedings on those points and they are not argued or briefed for our consideration.

The trial court allowed the appellee, Frank J. Scampmorte, $900.00 expense money in trips to Florida and North Carolina where the testator lived at times prior to his death, and also made an allowance of $4,035.00 for attorney fees to be allotted between two attorneys after the final adjudication that the purported will should not be probated.

The allowance of the $900.00 expense money is not contested on appeal here. The trial court found the proceddings to probate the purported will, which terminated unsuccessfully, was brought 'in good faith and with just cause.' No question is raised as to that point nor as to the reasonableness of the amount of the fee allowed. Only the allowance of any attorney fee because of the contingency fee contract is questioned here.

Prior to the present Probate Code, the unsuccessful proponent of a purported will could not recover his expenses and attorney fees.

Doan v. Herod (1914), 56 Ind.App. 663, 104 N.E. 385. The present Probate Code changed this, as cited above. (See Comment, Probate Study Commission, Section 7-414) The new code likewise changed the burden of proof in such proceedings. (Burns' § 7-120) The changes eliminated the unseemly race to the court house to be first in probating or preventing the probate of a will.

It is argued that in view of the contingency fee contract, the allowance of an attorney fee was not a 'necessary expense' of the litigation.

The question arises: What is the meaning of the word 'necessary' as used in the statute with reference to the expenses, including attorney fees?

'The word (necessary) must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought.' Black's Law Dictionary, Fourth Edition, p. 1181.

In our opinion, the word 'necessary' as used in the statute, has no application to the financial needs of the proponents, but describes the expenses which are normally required in connection with an action in a will contest case. Therefore, normally, attorney fees being necessary or required in such cases, an allowance should be made therefor in situations such as this (where a proponent is unsuccessful) even though the proponent is able financially to pay such fees and expenses out of his own pocket.

The situation is somewhat analogous to that of a suit on a note containing a provision for the payment of attorney fees. In that connection it is pointed out that regardless of the fact that the holder of the note may have a contingency fee arrangement privately with his attorney in bringing the action, he is still entitled, as a party plaintiff, to recover reasonable attorney fees against the maker to reimburse him for any attorney fees he may pay out under a contingency contract. Such allowance of a fee belongs to the party to reimburse him.

Garrison v. Garrison (1897), 150 Ind. 417, 50 N.E. 383. Proof must be made of reasonable attorney fees. It goes without citation that the court is not bound by any amount fixed privately by the party and his attorney in any contract.

Counsel has cited no cases in this jurisdiction in point on the question here. A search of those jurisdictions having statutes similar to that of Indiana with reference to the payment of attorney fees to the unsuccessful party in will contest cases, reveals little, if any, help. In the State of Florida we find the case of Watts v. Newport (1942), 150 Fla. 288, 7 So.2d 104, modified 151 Fla. 209, 9 So.2d 417, which appears to support the appellees' contention that they are entitled to be reimbursed for attorney fees. The statute appears to be similar to ours in this state. A comment in 40 A.L.R.2d p. 1428 with reference to that case states:

'* * * it was indicated that if the attorneys undertook to perform the services under an agreement that the executor should be liable for their services only if they were successful in sustaining the will, but they also relied upon the statute providing for the recovery of attorneys' fees by an unsuccessful proponent of the will in a proper case, recovery might still be had from the estate notwithstanding the failure to sustain the will.'

However, a later Florida case, In re: Gleason's Estate (1954), 74 So.2d 360, denied attorney fees to the unsuccessful proponent under an interpretation of the statute based on the showing that the services of appellee's counsel brought nothing to the estate. For other cases that touch upon the question, but in our opinion are of little help, see: In re Spidel's Estate (1952), Ohio App., 110 N.E.2d 718; Lindsey v. Markley (1950), 87 Ohio App. 529, 96 N.E.2d 311; Conley v. Fenelon (1929), 266 Mass. 340, 165 N.E. 382; In re Caruso (1955), 18 N.J. 26, 112 A.2d 532.

The statute places the obligation on the estate to pay the attorney fees and expenses that are normally required in a proceeding to probate a purported will if the proceedings are in good faith. This statute is not conditional upon any outside or private agreement. If the proponent had been successful, regardless of the contingency contract, the proponent would have been entitled to recover reasonable attorney fees in no way related or connected with the amount fixed in the contingency contract. The proponent...