In re Huff

• Decision Date: 30 March 2000
• Docket Number: No. 06-99-00096-CV,06-99-00096-CV
• Citation: 15 S.W.3d 301
• Parties: (Tex.App.-Texarkana 2000) IN RE ESTATE OF ESSIE HUFF, DECEASED
• Court: Texas Court of Appeals

Page 301

15 S.W.3d 301 (Tex.App.-Texarkana 2000)

IN RE ESTATE OF ESSIE HUFF, DECEASED

No. 06-99-00096-CV

Court of Appeals of Texas Texarkana.

Argued Feb. 29, 2000.

Decided March 30, 2000.

On Appeal from the 336th Judicial District Court Fannin County, Texas Trial Court No. 32865

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

DONALD R. ROSS, Justice.

Mozelle Bono and Dwain Hearn ("Proponents") appeal from a judgment probating decedent Essie Huff's will, but awarding attorney's fees to counsel for Juanita Barfield, Clara Langston, David Hollis, Angeline Evers, Melba Hart, Elaine Edney, and Jewel Dye ("Intervenors"). Proponents, decedent's friends, offered a will to probate dated January 26, 1996. That will names Bono executor, and Bono and Hearn beneficiaries.

Tim Bruce Fogle and Judy Kay Fogle Rivers ("Contestants") offered a will to probate dated March 4, 1993, and filed a motion contesting probate of the 1996 will on the grounds that the decedent lacked testamentary capacity and was burdened by undue influence when she executed the 1996 will. The 1993 will named Fogle executor, and Fogle and Rivers beneficiaries.

Intervenors, decedent's relatives and heirs at law, entered a plea in intervention and filed a motion that (1) contested probate of the offered wills on the ground that the decedent had revoked her prior wills by a subsequent handwritten document, which they contended constituted a holographic will; (2) offered the handwritten document to probate as decedent's will; and (3) requested reasonable attorney's fees.

Intervenors contended that the handwritten document left Hearn specific items of decedent's personal property, but did not dispose of her residual estate. Under Texas law, Intervenors would have had a claim to the residual estate by operation of law if the trial court had probated the handwritten document as a holographic will.¹

The trial court found that the handwritten document was not a valid will, but also found that Intervenors brought the document forward in good faith. The court awarded Intervenors $19,892.80 in attorney's fees. Contestants had taken a nonsuit before trial. We reverse the trial court's judgment and render judgment in favor of Proponents.

On appeal, Proponents contend that the trial court erred by awarding Intervenors attorney's fees because (1) Intervenors do not qualify for attorney's fees under Tex. Prob. Code Ann. § 243 (Vernon Supp. 2000); (2) Intervenors' attorney accepted the case on a contingent fee basis and should be bound by the terms of that agreement; and (3) there was no evidence to show that Intervenors acted in good faith. In the alternative, Proponents contend that the trial court erred by accepting into evidence after trial Intervenors' supplemental affidavit requesting attorney's fees at variance with their attorney's sworn testimony at trial.

Proponents first contend that Intervenors do not qualify for attorney's fees under Section 243 of the Probate Code. This statute allows a court to award reasonable attorney's fees to designated beneficiaries of a will or alleged will, or an administrator with the will or alleged will annexed, if they attempt in good faith to get the will or alleged will admitted to probate and whether or not they are successful. The portion of the statute at issue provides in part:

When any person designated as a devisee, legatee, or beneficiary in a will or an alleged will, or as administrator with the will or alleged will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will or alleged will admitted to probate, whether successful or not, he may be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in such proceedings.

Proponents contend that because the trial court found that the handwritten document was not a valid will, awarding attorney's fees was not appropriate under the statute. While in theory a party might challenge a court's finding that a document constitutes an alleged will under the statute, Proponents do not make that challenge here. Instead, they contend that because the court found that the handwritten document was not a valid will, the statute does not allow Intervenors to recover attorney's fees.

Proponents are mistaken in this conclusion. The statute allows a beneficiary of an alleged will to recover attorney's fees. Actual probate of the will is not a prerequisite to qualify for an award of attorney's fees. In this case, the trial court found that the handwritten document was an alleged will; therefore, awarding attorney's fees was appropriate, as long as Intervenors met the other requirements of Section 243.

Proponents also contend that Intervenors were not designated as devisees, legatees, or beneficiaries in the handwritten document, an alleged holographic will, because the document does not specifically name Intervenors as beneficiaries. They would have taken, if at all, as residual beneficiaries. Proponents appeal to the language of the statute to support their interpretation of the word "designated."

Issues of statutory construction are questions of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). We review questions of law under a de novo standard. Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex. 1995).

This Court's primary objective in construing a statute is to give effect to the Legislature's intent. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). When a statute is clear and unambiguous, we should determine the Legislature's intent from the plain and common meaning of the words used in the statute. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). However, we also must consider the entire act, its nature and object, and the consequences that would follow from each construction. Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258 (Tex. 1999). We must assume that every word included has a purpose and that every word excluded was excluded for a reason. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995).

Whether a devisee, legatee, or beneficiary must be specifically named in a will or alleged will to recover attorney's fees under Section 243 is apparently an issue of first impression. In Harkins v. Crews, 907 S.W.2d 51, 62 (Tex. App.-San Antonio 1995, writ denied), the court stated that Section 243 allowed beneficiaries who were named in the will to recover attorney's fees. In Schulte v. Marik, 700 S.W.2d 685, 686-87 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.), the court held that the term "designated executor" in the first part of Section 243 is one specifically named in the will.²

Neither party has cited and our research has not revealed any Texas case that addresses the rights of beneficiaries who take by operation of law. We need not reach this issue, however. Even if the term "designated" in Section 243 could be construed to mean something other than "specifically named," it is clear to us that Intervenors were not "designated beneficiaries in a will or alleged will," as the statute requires. The handwritten document does not refer to Intervenors by name or as a class.

Intervenors rest their contentions on the general rule that "if the language in the will clearly indicates that some of the property has not been disposed of, partial intestacy will be upheld." Carr v. Rogers, 383 S.W.2d 383, 385 (Tex. 1964). They also maintain that any other holding would deprive recovery of attorney's fees to any spouse, child, or other descendant not specifically referred to in the will or alleged will. Such a result, Intervenors contend, would be foreign to the Legislature's intent.

However, the rule that allows title to property to pass by intestate succession is not so broad as to encompass the right to seek attorney's fees under Section 243. The latter is not a right the testatrix enjoyed in life, nor one that passed to her heirs at death. The Legislature vested that right in a person designated as a devisee, legatee, or beneficiary in a will or alleged will who acts in good faith and with just cause. Any purported beneficiary must qualify for that right by reference in the will or alleged will as required by the statute's terms. Intervenors offer us no cases that force a different conclusion, nor do they reason from the statute's text, its legislative history, or the Probate Code's general policy to demonstrate a contrary legislative intent.

At oral argument, Intervenors raised for the first time the contention that they qualify under the provision of Section 243 granting an "administrator with the will or alleged will annexed" the right to seek attorney's fees. After oral argument, Intervenors requested leave to file a supplemental brief to address this point. We granted their motion.

They contend that the word "designated" does not apply to the administrator portion of the statute because, by definition, an administrator is not designated in the will, but is an interested person seeking letters of administration where the testator did not name an executor.³ Under their contention, the statute would read, in relevant part:

When any person . . . as administrator with the will or alleged will annexed, defends it or prosecutes any proceeding . . . .

Essentially, Intervenors claim that because they applied in good faith for letters of administration for the handwritten document, an alleged holographic will, they are entitled to attorney's fees under Section 243.

This is a plausible reading, but one that proves too much. Though the testator does not designate an administrator, the statute does not require the designation to be made by the testator. The statute leaves unspecified who makes the designation. Under Texas law, the court designates the...