Powell v. Barnard
| Decision Date | 08 February 1936 |
| Parties | POWELL v. BARNARD et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court June 13, 1936.
Appeal in Error from Circuit Court, Davidson County; A. B. Neil Judge.
Proceeding in the matter of the estate of Etta M. Bixby, deceased wherein George W. Powell offered for probate an alleged will of the deceased, of which probate was contested by the heirs at law of Etta M. Bixby, deceased. A judgment denying probate of the will on the ground of undue influence was affirmed by the Court of Appeals, and a petition for certiorari was denied by the Supreme Court, and on remand, George W. Powell as executor named in the purported will offered for probate filed a petition for allowance of attorneys' fees and expenses. From a judgment allowing attorneys' fees and expenses, Mary A. Barnard and others, contestants, appeal in error.
Affirmed and remanded.
As regards right of executor to attorneys' fees and expenses in will contest, "good faith" in propounding will involves honest belief that paper propounded is valid will and fidelity to side of proponent throughout contest.
W. M. Fuqua and Wm. D. Dodson, both of Nashville, for Powell.
Cecil Sims, Chas. H. Rutherford, and Charles H. Rutherford, Jr., all of Nashville, for Barnard and others.
This was a proceeding for the allowance and the determination of the amount of attorneys' fees and expenses of the suit incurred by an executor in a will contest in which he was unsuccessful in establishing the will.
Mrs. Etta M. Bixby died, leaving a will by which she devised and bequeathed practically all of her estate to George W. Powell and appointed him executor of said will.
The will was contested by her heirs at law on the grounds of mental incapacity of the testator and fraud and undue influence on the part of Powell. The jury found against the will on the ground of undue influence.
The Court of Appeals affirmed the trial court, holding that the illicit relation of the testatrix and said Powell was a material fact to be considered by the jury in reaching a verdict upon the issue of undue influence, and there was material evidence to support the verdict of the jury.
Petition for certiorari was denied by the Supreme Court.
Upon remand said executor filed a petition in the circuit court in said cause, asking the court to allow him attorneys' fees for services rendered by his attorneys in contesting the will and for allowance of the expenses of the suit.
Defendants answered averring that petitioner was not entitled to attorneys' fees and expenses of the suit because he was not acting in good faith; that he was attempting to have set up a will procured by him by fraud and undue influence.
The trial judge heard the case on the petition, answer, arguments of counsel, the bill of exceptions filed on the previous trial, and the entire record in the cause, including the opinion of the Court of Appeals and the petition to the Supreme Court for writ of certiorari, and allowed attorneys' fees of $1,750 and all expenses.
The case was heard on the whole record, and no testimony was heard, the trial judge holding that oral testimony of the executor as to his good faith was incompetent testimony.
Defendants excepted to said judgment and appealed to this court. No motion for a new trial was made in the circuit court. Defendants have assigned errors as follows:
(1) The court erred in holding and decreeing that the will was probated in good faith by the executor and in allowing him $1,750 attorneys' fees.
(2) The court erred in holding that the court costs were a proper expense of the administration of the estate. The court had already adjudicated the costs, and the action of the court had been affirmed by the Supreme Court.
(3) The court erred in holding and decreeing that the costs of printing briefs on appeal are a proper expense of the administration of said estate and in decreeing that such expense should be charged against the estate.
The defendant in error executor filed a motion in this court to dismiss the appeal in this cause and to affirm the judgment of the trial court because no motion for a new trial was made and filed in the trial court.
We will first dispose of the motion to dismiss the appeal. It will be observed that the whole record including the bill of exceptions was referred to and made a part of the petition by the following language:
"Petitioner hereby refers to and makes a part hereof as fully as though incorporated herein a copy of the record in the Chancery Court of the chancery case, aforesaid, styled, Mrs. Mary A. Barnard et al. v. George W. Powell, and the record of the trial in this cause now on file in the clerk's office, together with a copy of the opinion of the Court of Appeals, the assignments of error and brief of petitioner in the Court of Appeals, the petition for certiorari in the Supreme Court, the reply brief of the defendants in the Court of Appeals and their reply brief and petition for certiorari in the Supreme Court."
Of course, all of the record in the case on the preceding trial had already been filed, but the petition attempted to bring in the record in a chancery case, the assignments of errors and brief on appeal, and the petition for certiorari in the Supreme Court, which had not been previously introduced in the case in the trial court. In the prayer for relief it is asked that all the records, briefs, etc.,...
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