Russell v. Moeling
| Citation | 526 S.W.2d 533 |
| Decision Date | 16 July 1975 |
| Docket Number | No. B--5129,B--5129 |
| Court | Texas Supreme Court |
| Parties | Claude W. RUSSELL, Administrator, Petitioner, v. Branch R. MOELING, Respondent. |
Lane, Savage, Counts & Winn, Edward B. Winn and G. Ward Beaudry, Dallas, for petitioner.
Carter, Jones, Magee, Rudberg, Moss & Mayes, John E. Agnew, Dallas, for respondent.
A named executrix under a decedent's prior will, brought this suit to collect attorneys' fees and expenses, following an unsuccessful contest of the probate of the decedent's later will. A summary judgment was rendered by the trial court denying allowance of the attorneys' fees and expenses. However, the court of civil appeals reversed and remanded the cause to the district court, holding that the executrix is entitled to reasonable attorneys' fees if findings are secured to the effect that she had attempted to probate the earlier will in good faith and with just cause. Tex.Civ.App., 517 S.W.2d 912. We reverse the judgment of the court of civil appeals and affirm the judgment of the district court.
Mayme Cherry died in December of 1969, leaving two wills; one dated November, 1965, and a second dated March, 1969. The executrix named in the 1965 will offered that instrument for probate while Claude Russell offered the 1969 will for probate. The probate court probated the 1965 will. However, upon appeal the district court overturned that action and ordered the probate of the later will, appointing Russell the administrator with will annexed.
Subsequently, the executrix named in the 1965 will applied to the probate court for allowance of attorneys' fees and expenses incurred in her unsuccessful attempt to have the earlier will probated. Russell contested the application, but the probate court awarded some $24,000 in attorneys' fees and expenses to the executrix. This order of the probate court was reversed by the district court which granted Russell's motion for summary judgment. Upon appeal to the court of civil appeals, the trial court judgment was reversed and the cause was remanded to make findings with respect to 'good faith' and 'just cause' which are necessary to an award of attorney fees and expenses for an executor under Section 243 of the Probate Code, V.A.T.S.
In prosecuting this appeal from the action taken by the court of civil appeals, the administrator of the will admitted to probate presents basically two arguments why the attorneys' fees and expenses should not be awarded to the executrix of the earlier will. First, that this claim for attorneys' fees should have been brought in the original will contest and that such cannot be now undertaken; and secondly, that the executrix cannot seek attorneys' fees for her counsel under the statutory provision in the probate code since her attorneys, due to a contingent fee agreement, are not owed anything by the executrix.
In dealing with the administrator's second argument we look to Section 243 of the Probate Code:
When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in such proceedings.
The import of the statute is clear: the executor or administrator 'shall be allowed out of the estate his necessary expenses and disbursements.' The purpose then is to pay the cost of attorney's fees that are owed by the executor or administrator, and the allowance is not to the attorney, but to the administrator. See Thomas' Estate v. Fullen, 172 S.W.2d 118 (). We are presented here, however, with a situation where the unsuccessful executrix of the 1965 will and her attorneys had entered into a contingent fee agreement which provided that if the probate of the 1965 will was successful, the attorneys were to receive a percentage of all moneys they recovered. The earlier will was not probated and therefore the executrix named therein was not faced with any expense for the legal work that had been done since nothing was recovered. Young v. Grisham, 163 S.W.2d 842 (). Consequently, under the terms of Section 243, the estate could not be held liable for those attorneys' fees.
With reference to the administrator's argument to the effect that any claim for attorneys' fees and expenses must be brought, if at all, in the original will contest, we must turn first to this court's decision in Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327 (1939). The precise question presented in that case...
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Avila v. St. Luke's Lutheran Hosp.
...connected with the cause of action or defense, which, with the use of diligence, might have been tried in a prior suit. Russell v. Moeling, 526 S.W.2d 533, 536 (Tex.1975). The doctrine of collateral estoppel is designed to promote judicial efficiency, protect parties from multiple lawsuits ......
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Brown v. Traylor
...added.) The cases that Traylor cites in support do not hold or intimate that such a presumption arises, however. See Russell v. Moeling, 526 S.W.2d 533, 535-36 (Tex.1975); Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327, 329 (1939). In fact, neither these cases nor the statute's plain language s......
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Lee v Lee
...of good faith and just cause was necessary to show a benefit to the estate compensable under section 243. See id. (citing Russell v. Moeling, 526 S.W.2d 533 (Tex. 1975) and Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327 (Tex. 1939)). The Miller court found that a benefit to the estate was prove......
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Wich v. Fleming
...or not, we have held the executor's suit for recovery of attorney's fees must be brought in the original will contest. Russell v. Moeling, 526 S.W.2d 533 (Tex.1975); Tex.Prob.Code Ann. § 243 (Vernon 1980). The action of the court of appeals, therefore, had the effect of making the trial cou......