Huff v. Huff

• Decision Date: 08 February 1939
• Docket Number: No. 7186.,7186.
• Citation: 124 S.W.2d 327
• Parties: HUFF et al. v. HUFF.
• Court: Texas Supreme Court

124 S.W.2d 327

HUFF et al. v. HUFF.

No. 7186.

Supreme Court of Texas.

February 8, 1939.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Proceeding in the matter of the estate of Mrs. T. C. Huff, deceased, wherein W. T. Huff filed a claim which was opposed by J. H. Huff and others. A judgment adverse to W. T. Huff and others was modified and affirmed by the Court of Civil Appeals, 98 S.W.2d 442, and W. T. Huff and others bring error.

Judgments of the trial court and Court of Civil Appeals reversed, and cause remanded to the trial court.

G. E. Smith, of Comanche, for plaintiffs in error.

Oscar Callaway, of Comanche, and Gib Callaway, of Brownwood, for defendant in error.

SHARP, Justice.

This Court granted a writ of error in this case to review the opinion of the Court of Civil Appeals. The judgment of that court reformed and affirmed the judgment of the trial court, which allowed certain claims, including court costs and attorneys' fees, incurred by J. H. Huff in an attempt to probate an alleged will of Mrs. T. C. Huff, the probate of which will was denied. 98 S.W. 2d 442.

The controlling facts are as follows: On or about October 25, 1925, M. M. Huff died intestate, and left surviving him his wife, Mrs. T. C. Huff, five children, and one grandchild. By agreement of the children, Mrs. T. C. Huff retained possession of all the property, and she continued to have possession thereof during her lifetime without a division of same. On October 18, 1930, Mrs. Huff died, leaving a will, by the terms of which she left all of her property to J. H. Huff and two children. J. H. Huff was named independent executor of the estate. He offered the will for probate. An appeal was taken from the judgment of the county court to the district court. Several trials were had. Based on the findings of the jury in one of the trials, judgment was entered denying the probate of the will. The Court of Civil Appeals reversed and remanded the cause for a new trial. See 52 S.W.2d 1092. Upon the last trial the jury found: (1) That Mrs. Huff was lacking in testamentary capacity; and (2) that she was unduly influenced to execute the will by J. H. Huff, Mrs. R. H. Denny, and George T. Huff. The trial court entered judgment denying the probate of the will, and adjudged the costs of such proceedings against J. H. Huff, the proponent of the will. J. H. Huff appealed from that judgment to the Court of Civil Appeals, and the judgment of the trial court was affirmed, and the costs of such appeal were adjudged against J. H. Huff. See 72 S.W.2d 675. An application for writ of error was made to this Court, which was dismissed; and the judgment of the trial court became final.

During the pendency of the proceedings for the probate of the will J. H. Huff acted as independent executor of the estate, and almost three years after the death of Mrs. Huff he was appointed temporary administrator of the estate. Subsequent to the rendition of the final judgment above described, J. H. Huff filed a report in the trial court, setting up his actions as temporary administrator, and also presented his claim for services, expenses, etc., during the time he served as executor of the estate; and he prayed for an order of the court approving and ordering him as temporary administrator to pay the executor's commissions, allowances, and salary for services in operating the property, expenses of trips in the management of same, and the court costs and attorneys' fees incurred in an effort to probate the will.

Plaintiffs in error in substance contend that the Court of Civil Appeals erred in reforming and affirming the judgment of the trial court, for the following reasons: (1) The costs incurred in an effort to probate the alleged will of Mrs. Huff having been finally adjudged against J. H. Huff, he is bound by such judgment, and this prohibits him from recovering such costs from the estate; and (2) the jury having found that Mrs. Huff was lacking in testamentary capacity and that said will was procured by undue influence, and the probate of said will having been denied, by reason of such findings J. H. Huff is not entitled to recover the amounts claimed by him.

The trial court allowed the claims presented by J. H. Huff, and ordered same paid out of the estate; from which judgment an appeal was made to the Court of Civil Appeals, and judgment entered as above described. Thus we are presented with the question, under the state of this record: Was J. H. Huff entitled to recover the attorney's fees and court costs incurred in an effort to probate the will, and allowed him by the trial court in this case?

Article 3691, R.S.1925, provides: "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 attorney's fees, that may be necessarily incurred by them in the course of the administration." Under this statute an independent executor, or an administrator, is authorized to employ an attorney to represent the estate during the course of administration, and to contract to pay him a reasonable fee. Callaghan v. Estate of H. Grenet, 66 Tex. 236, 18 S.W. 507; 14 Tex.Jur., sec. 649, pp. 470, 471, 472.

The alleged will offered for probate named J. H. Huff independent executor of the estate of Mrs. Huff. This gave him the right to offer the will for probate; and if it appeared that he, as such executor, was acting in good faith to probate such will, and employed an attorney, or attorneys, for that purpose, the estate is properly chargeable with a reasonable fee for such services. See 14 Tex.Jur., sec. 652, p. 476; see also Note, 69 A.L.R., 1052. The fact that the attorney was unsuccessful in the suit, and that the probate of the will was denied, would not prevent an allowance for a reasonable fee. Caldwell v. Young & Morgan, 21 Tex. 800; Rowe v. Dyess, Tex. Com.App., 213 S.W. 234; 24 C.J., sec. 530, p. 97 et seq., and cases cited in notes; see 68 C.J. sec. 1069, p. 1213, and notes.

Article 3696 reads: "When a party files an application, complaint or opposition in court, and shall fail to sustain the object thereof, all costs occasioned by the filing of the same shall be adjudged against him." See also Article 2066.

The compensation of a temporary administrator is not fixed by statute, but the amount to be allowed him for his services is left to the discretion of the court appointing him, and only when it is shown that an injustice has been done will such discretion be disturbed. Bell v. Goss et al., 33 Tex.Civ. App. 158, 76 S.W. 315, writ refused.

The precise question presented here is: Can a person named executor in a will offer such will for probate, and, after its probate is refused on several grounds (one of which is that the executor and other beneficiaries named in the purported will had unduly influenced the maker thereof to execute same), in a later proceeding filed by him be allowed costs and reasonable attorneys' fees —the court in the previous proceeding having entered a final judgment whereby all costs involved in the proceedings to probate the will had been taxed against said executor? So far as we know, this question has never been decided by this Court.

In the case of Pendleton v. Hare, Tex. Com.App., 231 S.W. 334, the rule, supported by the weight of authority, is expressed as follows [page 336]: "* * * that where the executor has acted in good faith in employing an attorney in proceedings to probate the will, and the will is established, the estate is chargeable with the expense of reasonable attorney's...