MacPhee's Estate, In re

• Decision Date: 04 December 1968
• Docket Number: No. 68--75,68--75
• Citation: 216 So.2d 489
• Parties: In re ESTATE of C. Minnie MacPHEE, Deceased.
• Court: Florida District Court of Appeals

Page 489

216 So.2d 489

In re ESTATE of C. Minnie MacPHEE, Deceased.

No. 68--75.

District Court of Appeal of Florida, Second District.

Dec. 4, 1968.

Neal D. Huebsch, of Huebsch & Aulls, Eustis, and Walter Warren, Leesburg, for appellant.

H. L. Pringle and Davis, McLin, Burnsed & Austin, Leesburg, for appellee.

PIERCE, Acting Chief Judge.

This is an appeal from an order of the County Judge in a probate proceeding denying fees and costs to the executor and also fees to his attorney.

The sole determination which this Court is called upon to make is whether the County Jude had discretion in the matter of allowance of such fees and costs where the will of decedent is denied probate; and if so, whether such discretion was abused in denying such allowances.

The legality of decedent's will was here in this Court once before. In re: Estate of MacPhee, Fla.App.1966, 187 So.2d 679. The antecedent history of the estate case is set forth in our former opinion and need not be repeated here. Suffice to say that Mrs. C. Minnie MacPhee executed a will naming William O. Rast executor and also beneficiary of one-half of her estate. On the same date she deeded Rast her 'homeplace' property, receiving back certain dubious considerations. She had previously given him power of attorney, and she relied upon him generally for business advice. There had been other sundry business transactions between them. Five days after she executed the will Mrs. MacPhee died.

After Rast had qualified as executor, proceedings were brought to revoke probate of the will on the ground of undue influence over Mrs. MacPhee on the part of Rast. After trial of the issue the County Judge entered Order denying revocation of probate, which order was appealed to this Court.

We reversed the County Judge's Order, holding that the undisputed facts as to the relationship and dealings between decedent and Rast prior to her death created a presumption of undue influence, which presumption had not been overcome by Rast in testimony at the trial. The County Judge was directed by this Court 'to enter his Order granting the petition to revoke the will of C. Minnie MacPhee'.

Upon remand, letters testamentary to Rast were revoked by the County Judge, whereupon petition was filed for an order allowing fees to the executor Rast and also fees to his attorneys for representing him in the estate. After hearing, the County Judge held in effect that allowance of such fees depended upon the element of good faith on the part of the executor and his attorneys, and also upon the further factor--'did they bring anything to the estate?' The Judge found that neither Rast nor his attorneys had 'acted in bad faith', but that they had 'brought nothing to the estate'. Order was thereupon entered denying the petition. We construe the order as being one wherein the probate Judge exercised a permissible discretion, that he did not abuse it, and therefore affirm.

F.S. § 732.14, F.S.A. provides inter alia:

'(1) In all probate proceedings costs may be awarded in the 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.

* * *

* * *

'(3) 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 is unsuccessful.' (Emphasis supplied).

Rule 5.090(c) of the Probate and Guardianship Rules, which were in effect at the time the order appealed herein was entered, provides:

'The proponent of a Will in due form being prima facie justified in offering the same for probate shall receive his costs and attorney's fees out of the estate, even though he is unsuccessful.'

The Supreme Court in Watts v. Newport, 1942, 151 Fla. 209, 9 So.2d 417, referring to Section 51, 1933 Probate Act, now brought down in the compilations as § 732.14, said:

'Manifestly, it was the intention of the Legislature to clothe probate courts having jurisdiction of the probation of wills with discretionary powers to award or disallow costs and attorneys' fees in such matters. Such discretionary orders may on appeal be affirmed or reversed, according to the facts of each controversy. While the rule of good faith is not emphasized by the terms of the Act, nevertheless courts of other jurisdictions have, generally, read into similar Acts this salutary rule. * * *

'An executor, * * * when offering * * * a will to probate, is * * * charged with the exercise of good faith. If when offered the executor knew, or by the exercise of good faith could have known, that * * * the testatrix thereof at the time of the execution was lacking in testamentary capacity, * * * or for other unlawful acts amounting to fraud, then under said conditions and circumstances it becames (sic) the duty of the court in the exercise of sound discretion * * * to disallow the executor's costs incurred in an unlawful attempt to obtain an order to probate the alleged will. Probate court * * * are clothed with a sound judicial discretion in allowing or disallowing costs and can or may be reversed on appeal only for an abuse thereof.'

The Watts v. Newport case (In re Graham's Estate) was before the Supreme Court four times, reported in 149 Fla. 181, 6 So.2d 829 (1941); 150 Fla. 288, 7 So.2d 104 (1942); 151 Fla. 209, 9 So.2d 417 (1942), and 23 So.2d 485 (1945).

The opinion in 7 So.2d 104, says that the Probate Act--

'* * * authorizes the Probate Judge in his sound discretion to award reasonable and necessary costs and attorneys' fees from the proceeds of the estate to an unsuccessful executor...