Griffin v. Barr

• Decision Date: 09 August 1979
• Docket Number: No. 19822,19822
• Parties: James Herrin GRIFFIN, Temporary Guardian of the Estate of Willie Pearl Barr, Incompetent, Appellant, v. Willie Pearl BARR, Appellee.
• Court: Texas Court of Appeals

Page 477

587 S.W.2d 477

James Herrin GRIFFIN, Temporary Guardian of the Estate of Willie Pearl Barr, Incompetent, Appellant, v. Willie Pearl BARR, Appellee.

No. 19822.

Court of Civil Appeals of Texas, Dallas.

Aug. 9, 1979.

Rehearing Denied Oct. 1, 1979.

John W. Henvey, Office of Timothy E. Kelley, Dallas, for appellant.

Burt Berry, Dallas, for appellee.

Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.

CARVER, Justice.

Following the termination of a temporary guardianship proceeding, a jury trial was conducted in the probate court to fix the reasonable and necessary expenses, including attorneys' fees, to be allowed to the temporary guardian. The probate court entered its judgment on the jury's verdict and the temporary guardian appeals. The temporary guardian asserts that the probate court erred in submitting the issues to the jury, in submitting the amount of attorney's fees to the jury, and that, in any event, there was no evidence to support the jury's findings. We affirm the trial court's judgment on the grounds that the conduct of a trial on these issues was directed by the mandate following a prior appeal, that the right to trial by jury on issues at the request of either party was mandatory, and that the jury's verdict was supported by the evidence.

A detailed history of the dispute leading to the present case may be gained from the prior appeal styled Barr v. Griffin, 554 S.W.2d 305 (Tex.Civ.App. Waco 1977, no writ). Briefly, a daughter-in-law of the The trial court in response to the prior mandate, and upon a timely jury demand by the alleged incompetent, tried the issues to a jury as directed by Tex.Prob.Code Ann. § 21 (Vernon 1973) which states:

alleged incompetent instituted these proceedings and secured an ex parte appointment of a temporary guardian. By the time of the first evidentiary hearing, the parties were satisfied to announce to the court a settlement terminating the guardianship and reserving to the court the later determination of necessary expenses, including attorneys' fees, incurred by the temporary guardian. The settlement was subsequently repudiated by the alleged incompetent. Nevertheless, the probate court entered its order fixing expenses and attorneys' fees without any further agreement or evidence. On the former appeal, the trial court was directed to hear evidence on these issues, and we hold that there was no error in so doing.

In all contested probate and mental illness proceedings in the district court or in the county court or statutory probate court, county court at law or other statutory court exercising probate jurisdiction, the parties shall be entitled to trial by jury as in other civil actions.

Appellant asserts that, notwithstanding section 21, the particular issue of attorneys' fees has been reserved to the "court," meaning the trial judge as opposed to the jury, by Tex.Prob.Code Ann. § 242 (Vernon 1955) which states:

Personal representatives of estates shall also be entitled to all necessary and reasonable expenses incurred by them in the preservation, safe-keeping, and management of the estate, and in collecting or attempting to collect claims or debts, and in recovering or attempting to recover property to which the estate has a title or claim, and all reasonable attorney's fees, necessarily incurred in connection with the proceedings and management of such estate, On satisfactory proof to the court. (Emphasis added).

The question presented to this court is whether the legislature, by amending section 21 of the Probate Code in 1973 to provide for trial by jury of "all contested probate and mental illness proceedings" in the probate court, intended to include all issues of fact previously tried "to the court" but appealable and triable de novo with a jury in the district court. We conclude that this was the evident legislative intent.

We note that before abolition of trials de novo, the practice in probate was well established to appeal and try in the district court issues concerning allowances for attorneys' fees and other expenses of guardians and administrators. Salmon v. Salmon, 395 S.W.2d 29 (Tex.1965); Rowe v. Dyess, 213 S.W. 234 (Tex.Comm'n App. 1919, holding approved); Legler v. Legler, 189 S.W.2d 505 (Tex.Civ.App. Austin 1945, writ ref'd w. o. m.); Dallas Joint-Stock Land Bank v. Maxes, 112 S.W.2d 305 (Tex.Civ.App. Dallas 1937, no writ); Mathews v. Autry, 65 S.W.2d 798 (Tex.Civ.App. Austin 1933, no writ); Morton's Estate v. Ferguson, 45 S.W.2d 419 (Tex.Civ.App. Eastland 1932, writ ref'd). In some of these cases, the issue of the amount of an attorney's fee was submitted to the jury in the district court as in Salmon And Mathews. So far as we have been able to discover, this practice was never questioned. Presumably, the practice was familiar to the legislature in 1973 when it amended section 21 to provide for trials by jury in the probate court. No indication of an intent to restrict the issues to be tried by jury can be found in the 1973 statute. Indeed, an intention not to impose such a restriction is made clear by the language granting that right in "all contested probate and mental illness proceedings." Moreover, the phrase "to the court" in section 21 does not necessarily require trial by the judge without a jury because a jury, when demanded, is part of the court. Ex parte Lowery, 518 S.W.2d 897 (Tex.Civ.App. Beaumont 1975, no writ). Accordingly, we hold that the trial court did not err in trying these issues to the jury.

No problem arises concerning legislative power to require a jury trial of these issues in view of our decision in Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App. Dallas 1963 Appellants also urge, apart from a construction of the Probate Code, that a temporary guardian is to be likened to a receiver whose fees must be fixed by the court apart from the jury as prescribed by this court in Bergeron v. Sessions, 561 S.W.2d 551 (Tex.Civ.App. Dallas 1978, writ ref'd n. r. e.). That case is distinguishable in the light of our discussion of the former trial de novo practice. Administrators and guardians who have been subject to detailed statutory regulation differ from receivers, who have always been supervised by the appointing court under the customs and usages of equity. The cited opinions show that the probate court's control of administrators and guardians was not personal to the probate judge, but was subject to revision on appeal and trial de novo by the district court, sitting with a jury if demanded. Consequently, the considerations which led this court in Bergeron To...