Hare v. Pendleton

• Decision Date: 01 May 1919
• Docket Number: (No. 2100.)
• Citation: 214 S.W. 948
• Parties: HARE v. PENDLETON.
• Court: Texas Court of Appeals

Page 948

214 S.W. 948

HARE v. PENDLETON.

(No. 2100.)

Court of Civil Appeals of Texas. Texarkana.

May 1, 1919.

On motion for Rehearing, July 3, 1919.

Appeal from District Court, Grayson County; C. T. Freeman, Judge.

Suit by W. S. Pendleton against Silas Hare, administrator of Samuel Bailey. From judgment for plaintiff, defendant appeals. Reversed, and judgment rendered in favor of defendant.

F. H. Reily, of Oklahoma City, Okl., and J. A. L. Wolfe and J. H. Wood, both of Sherman, for appellant.

W. S. Pendleton, of Nowata, Okl., and J. W. Hassell, of Denison, for appellee.

HODGES, J.

This suit was instituted by the appellee, W. A. Pendleton, in the district court of Grayson county, against Silas Hare, administrator of the estate of one Samuel Bailey. The purpose of the suit was to recover the value of attorney's fees for services rendered to the executor of the will of Samuel Bailey in Oklahoma. The material facts are as follows: Samuel Bailey died in 1912 at his residence in Pottawatomie county, Okl. He left a will, in which he devised all of his property to Sherman Spencer, a nephew who was at that time residing in the state of Wisconsin. There were some collateral relatives, but no wife or children. By the terms of the will B. F. Hamilton, of Oklahoma, was named an executor. The estate consisted of real and personal property to the value of $6,000, situated in Oklahoma, and personal property consisting of $54,000, on deposit in the state National Bank of Denison, Tex., and $1,700 in notes executed by a party who resided in Oklahoma secured by a mortgage on Oklahoma real estate. After the making of the will, and before Bailey's death, Hamilton, knowing of his appointment as executor, engaged the legal services of the appellee, who was a practicing attorney in Shawnee, Okl. The employment was made for the purpose of assisting in the proceedings to probate the will and in the conduct of the administration and settlement of the estate. A few days after the death of Bailey, F. H. Reily, another attorney residing in Shawnee, Okl., was employed by Hamilton to represent him in all matters concerning the estate. The two were not partners, but associated for that case, Pendleton being regarded as the leading attorney. The probate of the will in Oklahoma was resisted by Amelia Parker and others, collateral relatives of the testator, upon the ground of mental incapacity and undue influence. The contest was lengthy, and was prosecuted to the Supreme Court of the state of Oklahoma. The litigation, however, resulted in a judgment probating the will. Both Pendleton and Reily represented the executor in all of those proceedings, and no question is made as to the value of the services then rendered. A short time after the filing of the will for probate, and while the contest was still in progress, Hamilton ascertained the existence of the deposits and notes in the bank in Texas; and accompanied by Riley, one of his attorneys, made application to be appointed temporary administrator of the estate in Texas. After considerable litigation in the county and district courts of Grayson county an agreement was entered into by all of the parties interested, which provided, in substance, that the appellant, Silas Hare, should be appointed permanent administrator in the state of Texas to take charge of all of the Texas property, perform all the duties incident to that position, and hold the estate for final distribution among the proper parties when the contest then pending in Oklahoma was finally decided. Some time after the appointment of Hare as administrator, Spencer, the beneficiary under the will, settled with Amelia Parker and others, and the contest was ended. In the course of his administration in Oklahoma Hamilton paid out all of the funds in his hands without compensating either the appellee or Riley for the legal services rendered by them in that state.

It appears from the evidence that at the time the appellant was appointed administrator of the estate in Texas the parties interested desired to have final distribution made in Texas in order to avoid the inheritance tax required under the laws of Oklahoma. In the course of his administration the appellant settled up all the claims against the estate in Texas that had been presented for payment except some not involved in this controversy, and a claim of the appellee for $10,000 as the value of legal services rendered by him to Hamilton, the executor, in the state of Oklahoma. In February, 1917, the appellee presented that claim to the appellant for allowance, and it was rejected. This suit followed in an effort to establish the claim against the estate in Texas.

In a trial before the court judgment was rendered in favor of the appellee for the sum of $7,500, and the appellant, as administrator, prosecutes this appeal. While Spencer, the beneficiary under the will, was named as a party defendant in the appellee's original petition, he was never cited and is not concerned in the result of this proceeding, except in so far as it may diminish the residue to be paid over to him as legatee in the final distribution. It appears that the appellant had filed his account for a final settlement, and had been ordered to pay over a part of the funds in his hands to Spencer, and to retain an amount sufficient to cover this and other claims to await the result of pending litigation. There are some other facts material to be considered, not included in the foregoing statement, which will be mentioned in the course of this opinion.

The record shows that two administrations are still pending on the estate of Samuel Bailey—one in Oklahoma, under the will, with Hamilton as the executor; and the other in Texas, without the will, with the appellant as administrator. Hamilton, the Oklahoma executor, in the management of the estate in his hands, incurred a liability to the appellee for attorney's fees for legal services which, for the present, will be regarded as having been rendered for the benefit of the estate being administered by Hamilton. The facts present this question: Can such a claim, if reasonable, be made a charge against the estate of the same decedent being administered in Texas, when it is shown that the funds belonging to that estate in Oklahoma have been exhausted and that the executor is insolvent? Or, to state the question in a different form, can the estate in Texas be made to pay any portion of the expense of administering the estate in Oklahoma when it is not shown that any of the funds of the Oklahoma estate have passed into the hands of Texas administrator?

The appellant has raised by demurrer some preliminary questions which should first receive attention. The first proposition asserted is that liability for attorney's fees incurred in the course of administration is the personal obligation of the legal representative, and cannot be made a charge against the estate in favor of the attorney rendering the service. The other contends that legal services rendered in a proceeding to probate the will, or in resisting the contest of the probate of the will interposed by the heirs of the decedent, cannot be made a charge against the estate in any event. In passing upon these and other questions growing out of this controversy, we must assume that the laws of Oklahoma are the same as the laws of Texas, as no proof upon that subject was offered. The only provisions of our statute authorizing the legal representative of a decedent to charge the estate in his hands with expenses incurred for the services of an attorney are to be found in article 3623, which are as follows:

"Executors and administrators shall also be allowed all reasonable expenses necessarily incurred by them in the preservation, safe-keeping and management of the estate, and all reasonable attorneys' fees that may be necessarily incurred by them in the course of the administration."

Article 3624 is as follows:

"All such charges as are provided for in the preceding article shall be made in writing, showing specifically each item of expense and the date thereof, and shall be verified by the affidavit of the executor or administrator, and filed with the clerk and entered upon the claim docket, and shall be acted upon by the court in like manner as other claims against the estate."

While these provisions seemingly contemplate that the allowance for reasonable attorney's fees and other expenses of administration shall be made directly to the legal representative, our Supreme Court has held that, inasmuch as the estate is the sole beneficiary of the liability incurred and must ultimately make payment, such claims may be presented and collected by the parties to whom payable, as other claims against the estate. Reinstein v. Smith, 65 Tex. 247; Portis v. Cole, 11 Tex. 157; Caldwell v. Young & Morgan, 21 Tex. 800; Jones v. Lewis, 11 Tex. 359; Adriance v. Crews, 45 Tex. 181; Price v. McIvre, 25 Tex. 769, 78 Am. Dec. 558; Gammage v. Rather, Admr., 46 Tex. 105.

Counsel for appellant have cited a number of cases from other states, among them the state of California, which support the proposition that liability for attorney's fees in such instances is the personal obligation of the legal representative. But, under the authorities above referred to, we think the rule is otherwise in this state. The case of Reinstein v. Smith, supra, was one in which an effort was made by the original creditor to establish against an estate a claim for indebtedness incurred by the legal representative in operating a plantation. The question before the court was, could the estate be made responsible to him directly? In disposing of that question Justice Stayton said:

"If the administrator had, from his own means, paid out the sums of money and furnished the articles, for the purpose and as alleged by the plaintiff, his right to reimbursement would be clear, as would it had he obtained them upon his own credit. In our opinion,...