Workman's Estate, In re, 470A68

• Decision Date: 29 September 1970
• Docket Number: No. 1,No. 470A68,470A68,1
• Citation: 262 N.E.2d 408,147 Ind.App. 523
• Parties: In the Matter of the ESTATE of Hazel WORKMAN, Deceased
• Court: Indiana Appellate Court

Page 408

262 N.E.2d 408

147 Ind.App. 523

In the Matter of the ESTATE of Hazel WORKMAN, Deceased.

No. 470A68.

Appellate Court of Indiana, Division No. 1.

Sept. 29, 1970.

John L. Fox, Indianapolis, for appellant.

LeRoy A. Freiherr, Harry A. Rider, Indianapolis, for appellees.

LOWDERMILK, Chief Justice.

The appellees, Mary Ellen Rhodes and Betty A. Kalleen, Guardian Ad Litem of James L. Kalleen, Jr. and Sherly Kalleen, minors, were devisees under the Last Will and Testament of Hazel Workman, deceased.

Appellant, Shideler Harpe, Sr., was named the Executor of the estate in such will and he declined to qualify and accept the appointment as Executor of said estate.

Shideler Harpe, Jr., son of the named Executor, Shideler Harpe, Sr., brought an action to contest the will and Shideler Harpe, Sr. took no action to defend the action contesting the will.

The above named appellees, as devisees under the will, employed attorneys LeRoy A. Freiherr and Harry A. Rider to represent them in the defense of such will contest. The action contesting the will was decided by jury, which returned its verdict in favor of the appellant and against the appellees herein. Afterward, appellees, as such devisees, sought to recover their attorneys' fees incurred in the defense of said will contest from the estate of their decedent, Hazel Workman.

The trial court heard evidence on appellees' amended petition for allowance of attorneys' fees and awarded the attorneys the sum of $1,475.00 as such fees.

The appellant timely filed his motion for new trial, stating as reason therein that such order and award of attorneys' fees made by the court was contrary to law. The court overruled appellant's motion for a new trial. It is the overruling of appellant's motion for a new trial which is the subject of appellant's assigned error that the award of attorneys' fees was contrary to law, and which is the basis of the appeal to this court.

Appellant, in his brief, concurs that the facts set out in the amended petition for the allowance of attorneys' fees are correct; that the Executor named in the will took no action to defend the purported will and that he (the Executor named in the will) did not retain nor employ Rider & Freiherr, attorneys, to defend the will or to have the same admitted to probate; that Rider & Freiherr, attorneys, did represent the devisees under the will in the trial of the will contest.

Appellant, Shideler Harpe, Sr., the designated Executor of the decedent's estate, contends that the award of the attorneys' fees was contrary to law in that claimants' attorneys did not qualify as counsel for any parties or persons designated by statute as those being allowed attorneys' fees from the estate for counsel in a will contest.

The statute on which appellant relies is Burns' Rev.Stat. § 7--414, and reads as follows:

'7--414. Allowance in will contest.--When any person designated as executor in a will, or the administrator with the will annexed, or if at any time there be no such representative, then any devisee therein, defends it or prosecutes any proceedings in good faith and with just cause for the purpose of having it 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 appellant further contends that appellees acknowledged that Shideler Harpe, Sr. was the designated Executor under the contested will and attorneys Rider & Freiherr did not represent him.

Appellant further contends that it is only in cases where there is no designated Executor that Burns' Rev.Stat. § 7--414 permits a devisee to defend or prosecute a will contest and have attorneys' fees paid from the estate. Appellant further argues that there was a designated Executor in the contested will and thus, no devisee can recover under the provisions of the statute, namely, § 7--414.

Appellant cites as authority for his argument the case of Fickle v. Scampmorte (1962), 243 Ind. 165, 183 N.E.2d 838.

The appellees contend that they, as devisees under the Last Will and Testament of Hazel L. Workman, deceased, prosecuted the probate proceedings of such will and defendant such will in good faith and with just cause for the purpose of having said will admitted to probate; and, although unsuccessful in defending such will, they are entitled to an allowance out of the estate of said decedent of their necessary expenses, including attorneys' fees, incurred in such proceeding.

It is appellees' further contention that when the Executor named in such will, having an interest adverse to the devisees, took no action to offer it for probate or defend it in a will contest, that at such time there was no Executor or Administrator with the will annexed and that they, as devisees, being forced to defend such will are entitled to their expenses and attorneys' fees incurred in said defense.

In Fickle et al. v. Scampmorte et al., supra, Judge Arterburn of our Supreme Court, after quoting from the Probate Code, § 7--414, supra, said:

'This statute provides first, that where a will has been probated, those who have the right to defend a will shall be allowed fees and expenses for defending it. Secondly, where a purported will is offered for probate in good faith, those who have the prior right to prosecute its probate, regardless of success, shall be entitled to necessary fees and expenses. In the latter case this would be the executor named in the purported will and if none is named, then 'any devisee therein."

In the Fickle case there was no contest as to the amount of the attorneys' fees where the court made an allowance for expense money and attorneys' fees to be allowed after final adjudication that the purported will should not be probated. Likewise, in the case at bar there is no contest as to the amount of the fee allowed, and further, the appellant agrees that the proceedings to probate the purported will, which terminated unsuccessfully, were brought 'in good faith and with just cause.'

Prior to the adoption of the new Probate Code, of which Burns' Rev.Stat. § 7--414 is a part, a party who defendant the will, if unsuccessful, could not be compensated for his services and expenses from the estate. Success was mandatory before he could be paid out of the proceeds of the estate. In drafting the present law the Commission commented:

'Model Probate Code Comments (§ 104). If a personal representative prosecutes or defends in proceedings to construe a will, he can recover expenses and attorney's fees without a statute such as this. This section is necessary only because, if probate is denied, it might be claimed that a personal representative named in it or defending it is not entitled to expenses...