Little v. Gavin

• Decision Date: 24 February 1944
• Docket Number: 8 Div. 271.
• Citation: 16 So.2d 873,245 Ala. 252
• Parties: LITTLE v. GAVIN et al.
• Court: Alabama Supreme Court

16 So.2d 873

245 Ala. 252

LITTLE v. GAVIN et al.

8 Div. 271.

Supreme Court of Alabama

February 24, 1944

Horace C. Wilkinson, of Birmingham, for appellant.

W H. Key, Jr., of Russellville, and Orlan B. Hill and A. A Williams, of Florence, for appellees.

GARDNER Chief Justice.

In Little v. Sugg, 243 Ala. 196, 8 So.2d 866, this Court affirmed the judgment of the court below in sustaining the contest of the will of Charles R. Burgess, deceased instituted by a number of the heirs of said decedent. The will had been offered for probate by Agnes Little, the sister of decedent, who (omitting a few $1.00 bequests) was the sole beneficiary under the will.

The estate appears to have been a valuable one, and the litigation over the contest of the will was rather extensive. The grounds of contest were: (a) testamentary incapacity of said Charles R. Burgess; (b) undue influence exercised by Agnes Little and her son, Fontaine Little. One Foster Gavin was appointed administrator of the estate, which administration is now pending in the equity court. Agnes Little filed a petition in said court that she be allowed reimbursement for monies expended in her unsuccessful effort to probate the will, including fees paid to alienists, cost of preparation of bill of exceptions, printing briefs, and the cost of the contest which had been taxed against her. In her petition she refers to a petition then on file presented by her attorneys seeking to have the court order their fee of $5,500 allowed as a claim against the estate of Charles R Burgess, deceased. For the purpose here in hand these two petitions are considered together.

A reference was held by the Register under order of the court, who reported upon the reasonableness of the charges, including the attorneys' fee; and also that in his opinion, Agnes Little had acted in good faith and was entitled to have herself reimbursed for the expenditures outlined, and to have her counsel fee paid out of the estate. Upon consideration of the exceptions to the report of the Register, the trial judge entered a decree sustaining the exceptions and denying the relief sought by the two petitions. From this decree Agnes Little has prosecuted this appeal.

In addition to testimony as to the reasonableness of the charges and her own testimony, petitioner offered before the Register testimony of the attorneys who took active part in the contest proceeding tending to show their investigation of the case prior to the trial, their conversations with Agnes Little, and their advice to her that the contest should be resisted. In short, the evidence before the Register in this regard tended to show the entire good faith of the attorneys, and their extraordinary diligence in the preparation and conduct of the cause. The opposing parties offered the testimony taken upon the trial of the contest, which has been here carefully re-read and re-examined, and which contains ample justification to sustain the verdict rendered, both upon the ground of testamentary incapacity and undue influence.

Defendants to the petition moved the court to set aside so much of the order of reference as referred to the Register the question of good faith on the part of Agnes Little. But the trial judge stated, in his order denying this motion, that as the date of the reference had already been fixed and notice given, he would overrule the motion and reserve for consideration the various grounds of exception to the Register's report, at which time full consideration could be given thereto. The question of good faith was one wholly judicial in character, not involving any necessity for the labors of the Register as the court's accounting officer. It was a matter for the determination of the court and not a proper subject of reference to the Register. Horst v. Pake, 195 Ala. 620, 71 So. 430; Hale v. Cox, 240 Ala. 622, 200 So. 772; De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704.

Such being the situation, therefore, the report of the Register to the extent indicated is not entitled to the legal weight that ordinarily attaches thereto. Hale v. Cox, supra. The argument of counsel for petitioner, therefore, to the effect that the report of the Register is entitled to the weight of the verdict of a jury is, in our opinion, untenable.

In the decree sustaining the exceptions to the report the trial judge said:

"The Court has carefully considered the petition of Beddow, Ray and Jones, and J. Foy Guin, and the evidence in support thereof, as well as the report of the Register as it relates to said petition, and the exceptions filed thereto. This Court, having presided at the trial of the contest of the will of Charles R. Burgess, deceased, and having heard the testimony given ore tenus on said trial, and having considered the testimony taken on the reference before the Register, is of the opinion that the report of the Register in so far as it recommends the source from which the attorney's fee be paid, is a mistake of law. Admittedly, no part of the services rendered by said attorneys benefited the estate of the decedent, nor were intended to benefit the estate of the decedent, but all such services were rendered in the promotion of the individual interest of the petitioner, Agnes B. Little. Had the services of these petitioners been successful the entire estate would have been the property of the said Agnes B. Little. This Court is therefore of the opinion that it would be unjust and inequitable in the premises to place the burden of the payment for legal services rendered exclusively for the individual benefit of Agnes B. Little in any part, or in any measure, upon the other heirs of this estate. This Court is, however, of the opinion that these petitioners did render legal services to the said Agnes B. Little for her individual benefit for the reasonable value of $5500.00 as found by the Register in his report, and that they should be compensated in such amount for such services, and that such compensation should be paid to said attorneys from the individual distributive interest of the said Agnes B. Little in said estate.

"It is therefore ordered, adjudged and decreed that the exceptions filed to the report of the Register, insofar as they relate to all questions except the amount of the said attorneys' fees, be and the same hereby are sustained, and said report is as to all things except the amount of said attorneys' fees hereby set aside.

"It is further ordered, adjudged and decreed...