Smith v. Callison
| Decision Date | 05 March 1943 |
| Parties | SMITH et al. v. CALLISON et al. |
| Court | Florida Supreme Court |
Rehearing Denied March 31, 1943.
Appeal from Circuit Court, Volusia County; H. B. Frederick judge.
John R Parkinson, of Daytona Beach, for appellants.
William W Judge, of Daytona Beach, for appellees.
Nicholas P. Alkire a resident of the State of Florida, died leaving a last will and testament. The will was duly admitted to probate. Thereafter, appellees unsuccessfully sought, by appropriate proceedings, to revoke the probate of said will. They were represented in their efforts by an attorney, who took the employment on a contingent basis, and who has not been compensated for his services.
Under such circumstances, does the County Judge have authority to order payment of an attorney's fee to such unsuccessful litigants, or their attorney, to be made out of the assets of the testator's estate?
If there is authority for such an allowance, it must be found in Section 158 of the 1933 Probate Act, c. 16103, which reads as follows: 'Any attorney who has rendered services to an estate, or the personal representative, may apply to the court by petition for an order making an allowance for attorney's fees, and after notice to persons adversely affected, the court shall make such order with respect thereto as shall be proper.'
The order, or judgment, of the Probate Court in this case allowed an attorney's fee to the unsuccessful contestants, finding that the legal services which had been rendered by the attorney in attempting to upset the will 'were beneficial to said Estate in determining whether or not said will should be admitted to probate'.
We think that the entry of such order was unwarranted. This is not a case where counsel has been employed to obtain or create a fund for the joint benefit of all parties, and has been successful in his efforts. Lewis v. Gaillard, 70 Fla. 172, 69 So. 797. Neither is this a case where an attorney represents one who is named as executor in a will which is apparently valid on its face, and who in good faith offers the will for probate. Watts et al. v. Newport, Fla., 9 So.2d 417. The case now before us is one where the main object of the litigation is to destroy the will and to recover the corpus of the property for the contestants, themselves, contrary to the provisions of the will and adversely to the interests of all persons named therein.
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Wilmott's Estate, In re
...797. Fees have likewise been denied to counsel for parties who attempted unsuccessfully to revoke the probate of a will. Smith v. Callison, 152 Fla. 516, 12 So.2d 381. The applicant in each case, a moving party in litigation brought to overthrow a duly established instrument, was wholly uns......
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Blankenship's Estate, In re, 2291
...that recovering nothing, there was no fee to be paid to them. Appellees further cite as authority for their position Smith v. Callison, 1943, 152 Fla. 516, 12 So.2d 381, and Lewis v. Gaillard, 1915, 70 Fla. 172, 69 So. 797. The former involved a claim of fees in an action to revoke the prob......
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In re Graham's Estate
... ... 172, 69 So. 797. And in ... order for attorneys to recover under this Section the ... services rendered must have benefited the estate. Smith ... et al. v. Callison et al., 152 Fla. 516, 12 So.2d 381 ... Section 51 of the ... Probate Act, Section 732.14, F.S.A., is as follows: ... ...
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MacPhee's Estate, In re
...And in order for attorneys to recover under this Section The services rendered must have benefited the estate. Smith et al. v. Callison et al., 152 Fla. 516, 12 So.2d 381.' (Emphasis We construe the statutes, the probate rule, and the four Watts v. Newport opinions aforesaid, to repose in t......