In re Graham's Estate

• Decision Date: 05 October 1945
• Citation: 23 So.2d 485,156 Fla. 421
• Parties: In re GRAHAM'S ESTATE. DICKENSON et al. v. BERGER et al.
• Court: Florida Supreme Court

23 So.2d 485

156 Fla. 421

In re GRAHAM'S ESTATE.

DICKENSON et al. v. BERGER et al.

Florida Supreme Court

October 5, 1945

Rehearing Denied Oct. 24, 1945.

Appeal from Circuit Court, Hillsborough County; R. H. Rowe judge.

Erle B. Askew Richard T. Earle, Jr., and Clair A. Davis, all of St. Petersburg, for appellants.

Dupree & Cone, Gibbons, Vega & Gibbons, and Whitaker, Whitaker & Terrell, all of Tampa, for appellees.

SHIELDS, Circuit Judge.

This proceeding grows out of the unsuccessful attempt of Mrs. Beatrice Newport to procure the probate of a will alleged to have been executed August 20, 1937, by Mrs. Letitia V. Graham deceased. It is an appeal from a final decree and judgment made and entered by Honorable R. H. Rowe, Circuit Judge, acting as Judge pro hac vice of the Circuit Court of Hillsborough County, July 28, 1944, affirming a decree of Honorable Paul D. Barns, Circuit Judge, acting as Judge pro hac vice of the County Judge's Court of said County, made and entered October 21, 1943, by which he denied the petition of appellants praying for allowance of counsel fees in the sum of $75,000 from Mrs. Graham's Estate for services rendered in said attempt of Mrs. Newport, the proponent and named as executrix in said alleged will.

Mrs. Graham died December 16 and on December 20, 1938, Mrs. Newport, by her attorneys, offered for probate the alleged will of 1937 in which she was not only named as executrix but was the principal beneficiary. The probate was contested by relatives of Mrs. Graham and by the curator of her estate, and on July 1, 1940, Honorable Harry N. Sandler, Circuit Judge, acting pro hac vice as County Judge of Hillsborough County by reason of the disqualification of Honorable G. H. Cornelius, County Judge of said County, made a decree denying probate of said will, holding that at the time of its alleged execution Mrs. Graham was without testamentary capacity and that the alleged will was a forgery and a creature of fraud. And on July 19, 1940, Judge Sandler, acting as aforesaid, made a decree denying petitions of Mrs. Newport to be allowed costs, expenses and attorneys fees incurred in her efforts to probate the alleged will. From these decrees an appeal was taken to the Circuit Court of Hillsborough County and Honorable Alto Adams, then Circuit Judge, acting pro hac vice as Circuit Judge of Hillsborough County, on November 25, 1940, made and entered a decree and judgment reversing said decrees of the County Judge's Court, and holding that the proposed will was valid and ordering that it be probated. From this judgment an appeal was taken to this Court which on December 19th, 1941, reversed the Circuit Court of Hillsborough County and sustained the decrees of Judge Sandler, acting as County Judge. Watts et al. v. Newport, 149 Fla. 181, 6 So.2d 829.

While that case was pending in this Court Mrs. Newport and her attorneys filed their application to this Court to fix and allow the amount of their costs expenses and attorneys fees and direct that the same be paid out of the assets of the estate of Mrs. Graham. In a per curiam decision made March 31, 1942, this court entered an order denying the application of Mrs. Newport and her attorneys, but without prejudice, and with permission to apply to the County Judge's Court of Hillsborough County for the allowance of such costs, expenses and attorneys fees. Watts et al. v. Newport (In re Graham's Estate), 150 Fla. 288, 7 So.2d 104.

On May 22, 1942, by virtue of said permission, Mrs. Newport, two of her attorneys and the representative of the third who was then deceased, filed in the County Judge's Court of Hillsborough County their application to be allowed and paid from Mrs. Graham's Estate costs and expenses and reasonable attorneys fees incurred in their efforts to probate the alleged will.

On the same day, May 22, 1942, Mrs. Newport and her attorneys and the representative of the one then deceased applied to this Court for an order clarifying and modifying its order last referred to and upon hearing and consideration this Court on July 24, 1942, speaking through then Justice, now Chief Justice, Chapman, rendered its opinion and entered its order and judgment upon said application for modification and clarification. Watts et al. v. Newport (In re Graham's Estate), 151 Fla. 209, 9 So.2d 417.

Honorable Paul D. Barns, Circuit Judge, was assigned to act pro hac vice as County Judge of Hillsborough County by reason of the disqualification of the Honorable Harry N. Sandler, and to hear and determine the issues raised by the petitions of Mrs Newport and her attorneys for costs, expenses and attorneys fees, and the answer and objections thereto by relatives of Mrs. Graham and by the curator of her estate. After the opinion on the application for clarification was rendered the joint petition filed May 22, 1942, by Mrs. Newport and her attorneys for costs, expenses and attorneys fees was abandoned and on November 16, 1942, by permission of Court, she filed in said County Judge's Court her separate petition to be allowed out of said estate compensation for her services and for her costs and expenses. This petition was finally abandoned and dismissed. Also on November 16, 1942, by permission of court, Mrs. Newport's attorneys, one acting both individually and as surviving partner of a firm that had originally represented her, appellants here, filed their separate petition to be allowed from said Estate expenses and attorneys fees in the sum of $75,000 for services in the attempt to probate said will. They finally abandoned their claim for expenses but insisted on their claim for attorneys fees. The petition states that their services were rendered in good faith to the estate of Mrs. Graham and prays for an order fixing and allowing such fees. Their claim was opposed by appellees here who had been appointed executors under a will of Mrs. Graham executed June 19, 1934, and admitted to probate December 7, 1942. After hearing and considering testimony and evidence submitted and argument of counsel, Judge Barns on October 21, 1943, made and entered a decree denying the petition of appellants for attorneys fees.

From Judge Barns' order an appeal was taken to the Circuit Court of Hillsborough County, Florida, and on July 28, 1944, Honorable R. H. Rowe, Circuit Judge, acting pro hac vice as Circuit Judge of Hillsborough County, Florida, made and filed his decree and judgment affirming the order of Judge Barns and from that judgment of affirmance this appeal was taken to this Court.

Ten separate grounds of error are assigned. From them it appears that there are two main contentions of appellants.

First, they contend that Judge Barns, in arriving at his decision, failed to follow and observe in the respects hereinafter indicated the rules of law applicable to allowance of fees to attorneys for services rendered in connection with the attempted probate of wills and especially those rules laid down by this Court in its former opinions on this phase of the case.

And second, they contend that the evidence presented to and considered by Judge Barns wholly failed to support his finding that the appellants are not entitled to receive anything from the estate of Mrs. Graham, and that his finding was contrary to the weight of the evidence.

And they claim that Judge Rowe, in affirming the decision of Judge Barns, committed error for which his judgment should be reversed.

Before taking up the question of the sufficiency of the evidence, it is necessary to consider the applicable law. The appellants rely upon Sections 51 (Sec. 732.14, F.S.A.), 94 (Sec. 732.58, F.S.A.), 124 (Sec. 733.20 F.S.A.), and 158 (Sec. 734.01, F.S.A.) of the Probate Act. Chapter 16103, Laws of Florida, Acts of 1933, F.S.A. § 731.01 et seq., and upon the opinion of this Court reported in Watts et al. v. Newport (In re Graham's Estate) 151 Fla. 209, 9 So.2d 417.

It does not appear thaT either Section 94 (Sec. 732.14, F.S.A.) or Section 124 (Sec. 733.20, F.S.A.), of the Probate Act can have any bearing now on this situation.

The paragraph of Section 158 of the Probate Act, Sec. 734.01, F.S.A., relied on provides:

'Any attorney who has rendered services to an estate, or the personal representative, may apply to the court by petition for an order making an allowance for attorney's fees, and after notice to persons adversely affected, the court shall make such order with respect thereto as shall be proper.'

This seems to be a declaration of the equitable principle that an attorney who had been employed to obtain or create a fund for the joint benefit of all parties or whose efforts have enhanced the value of or resulted in preserving such a fund may if successful in his efforts have the right to be compensated from the fund for his services. Lewis, as Executor, etc., et al. v. Gaillard, 70 Fla. 172, 69 So. 797. And in order for attorneys to recover under this Section the services rendered must have benefited the estate. Smith et al. v. Callison et al., 152 Fla. 516, 12 So.2d 381.

Section 51 of the Probate Act, Section 732.14, F.S.A., is as follows:

'732.14 Costs. In all probate proceedings costs may be awarded in the sound judicial discretion of the county judge, ordinarily abiding the result of each particular proceeding, but otherwise when it would be unjust that the failing party pay costs.

'When such costs are to be paid out of the estate, the county judge may, in his sound judicial discretion, direct from what portion of the estate they shall be paid.

'An executor, being prima facie justified in offering a will, in due form, for probate, shall generally receive his costs and attorney's fees out of the estate, even though he be unsuccessful.'

The last paragraph of this section also...