*1 48 Hart, Dallas, appellant. White,
G. Lee 1059, Life Co. v. Ins. 99 S.W.2d 1060 (Tex.Civ.App. 1936, writ dism’d — Eastland Foster, Gary C. B. Crapster, Rowland the j.), w. o. court held that since the con- Price, Kelton, Unis, Strasburger, Martin & was, by terms, its clear tract effective on Dallas, for appellee. 17, 1933, then January recovery was not two-year a AKIN, barred suicide Justice. exclusion the suicide clause where occurred on Janu Moore, Appellant individually Leta and 17, ary 1935. day Since the initial independent executrix of estate of as included, the anniversary date was excluded Moore, Industrial Life appellee, sued Wiliam therefore, and, not within the first two Company, on a credit life insur- Insurance policy opinion its years. Insur Home policy. Trial was the court on ance Rose, supreme v. ance Co. court distin facts, stipulated judgment was ren- guished Acme Life Insurance Co. v. White company. insurance We af- dered on this basis. Since contract here clear firm. ly coverage 2, on July coverage included $4,758 William loan Moore obtained therefore, be, September must excluded on of Grapevine First National Bank from Otherwise, appellant 2. would receive in 2, 1975, July was due on on loan coverage for two surance months a day, 1, September 1975. In connection with this months not two as contracted for loan, he took out a life credit insurance parties. See Ratcliff v. Louisiana Industri in the amount of the loan for a policy term Co., 557, 169 572, 185 al Life Ins. La. So. 573 months, effective 2. Mr. July Moore (1936). September having on without died Affirmed. repaid paid the loan. the estate Since loan, proper beneficiary it is the under the contract.
insurance question presented by The sole appeal policy expire? is when did the this agree “month” parties that the term The to a calendar in the contract refers used that a general The rule is calendar month. day in one given “runs from a month month Lee Nora BURTON and Arlene day corresponding of the number in the Schultz, Appellants, specified month.” Pit succeeding next Johns, 563, (Tex.Civ. v. 326 565 cock S.W.2d v. 1959, ref’d). Appellant writ App. — Austin BEAN, W. Woodrow II and Ward L. Koeh time on the rule that when is to be relies ler, Co-Administrators of the Estate of computed day, from or after a certain McGuffey, Deceased, Ap Ulmer Veatrice designated day and the is to be excluded pellees. day period is be included last clearly contrary intent is manifest unless No. 6580. by the contract. Home Insurance Co. v. ed Rose, 222, 861, Tex. 862 152 255 Texas, S.W.2d of Civil Appeals Court Thus, day inclusion Paso. El corresponding number in the final 23, March on predicated the exclusion of the month month; initial day of that number in the or the other must be excluded. Hutson
one Sadler, (Tex.Civ.App S.W.2d 1973, writ). insurance con .Tyler no it was specifically here states tract day. In July on the first Acme effective *2 Ramos, (Ray) Jr., Paso,
Ramon El for appellants. Bean, II, Koehler,
Woodrow W. Ward L. Paso, appellees. El for
OPINION
OSBORN, Justice. appeal
This from an order of the County probate, in approving fees for Co-Administrators a final account. We affirm. error,
By points two of three involved in administration heirs contend for fees of claim Co-Administrators itemized, properly not and that approving provided claims com- order the Co-Administrators in pensation to ex- 241(a).1 provided of that cess the death of Veatrice Following Ulmer February daugh- her McGuffey on ter, (now Ekola Nora Lee Bur- Nora Lee Bean, II, ton), Woodrow W. employed temporary adminis- application file time, her estate. At the same tration on daughters, other two Bertha Maudelle her Elliott, Appellant, not an who is Arlene Schultz, employed is an Appellant, who application L. to also Koehler file an Ward temporary Subsequent- administration. Probate Code. the Texas ai references All Section rights (2) their ly, all three heirs renounced if the compensation as represent the estate favor of their re- calculated on the percent five commission is were attorneys, appointed unreasonably who spective Co- low. In this there is They appointed, proof neither a finding by Administrators. nor that either in such qualified, capacity, and served those alternatives are applica- Thus, ble. if accounting Appellees seek are solely in their final additional re- limited *3 compensation provided for 241(a), for their services. imbursement Section the order approving the final account account, hearing At on the final erroneous. undisputed evidence established that at the But, provides 242 personal that appointed, time the Co-Administrators representatives of estates shall be entitled agreed they understood the heirs and that necessary to all and expenses reasonable attorneys would also serve as for the estate by incurred them in the management reasonably compensated and would be for estate, and all attorney’s reasonable fees such services. On June the Court necessarily incurred in connection with the approving application entered an order an proceedings management and es such pay expenses, to administration in- which necessarily tate. This question raises the $4,500.00 cluded fees in the amount of for attorney, whether an as an administrator of Bean, II, $4,750.00 W. and Woodrow for estate, may perform also legal work L. The application Ward Koehler. had an compensated and be for his at attached exhibit which itemized the date torney’s fees. “The majority rule appears rendered, and services and the application absence to be that in the of statute other the total hours per- reflected involved in providing, an executor wise or administra forming such as had been services rendered to compensation tor is not entitled extra for at that time. legal Annot., by services rendered him.” 23, 1976, the On June Co-Administrators Right of executor or administrator to extra account, their final a filed included legal compensation for by services rendered request pay to additional administrator’s 809, him, 65 A.L.R.2d an That and attorney’s expense fees to Wood- case, notation cites one but Texas Neblett Bean, II, $2,400.00, row W. in the sum of Butler, 162 S.W.2d (Tex.Civ.App.— and to Ward L. Koehler in the sum of 1942, m.). Galveston writ ref’d w. o. $13,525.67. Again, there were exhibits at- pointed that out the reason rendered, tached which showed the services rule and majority for the on concluded that thereof, the date and the total hours in- public policy, position one in a of trust showing volved. There is no of how much place should not himself in a situation time was served in the capacity of Co-Ad- duty where his interest conflicts with his attorney much as ministrator and how Court, fiduciary. considering a The this Perhaps in many for estate. instances problem, said: to it would be a fine line decide in which R.C.L., p. “In 11 is said: ‘It has it capacity the service was rendered. (the executor) been stated that if he Appellants contend that Appel- professional his chooses to exercise skill provisions by lees are limited of Section estate, business lawyer as a in the of the 241(a), percent and that a five commission gratuity, it must be considered a and that paid on sums received and out in cash in him to become his own to allow client and $6,600.00, be this instance would charge professional services, amount compensation paid holding professional less than the to out inducements for the Co- account, representative to prior places Administrators the final men to seek such business, professional increase their and that therefore should receive no pernicious which would lead most re- course, compensation. additional Of an ad sults.’ may compen ministrator receive reasonable (1) a manages certainly
sation for his services if he
very
“There is
au-
respectable
farm, ranch,
holding
factory,
thority
other business of
that executors cannot
employ
legal
attorney
themselves to render
serv-
under which the
served expressly
provided
ices for
benefit of an estate.”
that in the
he
event
acted as exec-
and also as his
attorney,
utor
own
he should
But,
analyzing
the Court went further in
capacity.
receive a fee in each
problem
by way
of dictum said:
opinion,
general
in its
noted
rule which
“However, strictly speaking, personal
fiduciary
making
profit
from
prohibits
representative
authority
does not have
But,
concluded,
employing himself.
it
legal
estate for
bind an
service. Art.
purpose
probate
the overall
of the
law
that
Ann.Tex.Civ.Statutes,
Vernon’s
pro-
give
full force and effect to the
clear
* * *
vides: ‘Executors
shall also be
intention
testatrix. The Court con-
expenses
allowed all reasonable
necessari-
that such
cluded
intention should be carried
ly
preservation
incurred
them in the
out and said:
* * *
and all reasonable
“ * * * By imposing her faith and
may
necessarily
*4
designated
in her
and pro-
trust
executor
by
incurred
them in the course of the
compensation,
purpose
for his
the
viding
personal
administration.’ A
representa-
policy
might
otherwise re-
duty
estate,
tive owes the
to preserve the
self-dealing transactions can
strict
no
expenses
which he
per-
incurs in the
longer
accomplished
policy
and the
is
formance of such
may
duties he
recover.
longer
controlling
no
consideration.
prudent
only agree
A
executor will
pay
to
here the
safeguard
There is
added
of a
attorney,
employs,
whom he
reasona-
statutory
by
standard
which the services
fees,
attorney’s
ble
the
if
reasonable-
for the estate
performed
may
objec-
contested,
ness of the fees is
the executor
tively evaluated.”
only
can
recover such as are reasonable.
reasoning
We believe the same
executor,
Whether an
who is
lawyer,
should be followed in this case. The evi
performs
himself,
the services
employs
or
undisputed
attorneys
dence is
that these
did
another, the reasonableness of the fees
appointment
not seek the
as Co-Administra
charged must stand the same test. So
tors,
they
accept
did
appointment
but
such
what difference could it make whether a
request
probate judge
at the
to re
lawyer-executor employs
lawyer,
another
parties.
solve a conflict between the
In
performs
the services himself? A tes-
addition, they accepted
appointment
the
tator chooses his executor because he
only
understanding
with the
that
thinks him trustworthy, and we think it
compensated
legal
would be
for their
serv
the
unlikely
testator
not
want the
addition,
safeguard
In
there is the
ices.
lawyer, to whom he intrusted the man-
that their claim for services must be item
estate,
agement of his
to be intrusted
by the
approved
ized and
and this
management
with the
of the law business
only
satisfactory proof
done
after
was
incident thereto. And
already pointed
as
independent proof
the services and
as to the
out, he does not have to trust him to
fix
of the charges,
reasonableness
in accord
exorbitant,
fee that is not
pre-
the law
Although
ance with Section
allow
vents that. We
question
therefore
high,
seems
the probate judge
ance
obvious
public
soundness of a
policy which would
rendered,
aware of all of the services
ly was
tend to defeat a testator’s desire to have
support
and there is evidence to
the trial
affairs, legal
business,
his
as well as
at-
finding that the charges are reason
Court’s
by
executor,
by
tended
his
one he has
”
* * *
able.
learned to trust.
caution,
The lead case in the above mentioned
By way of
it would seem to
Estate,
Thompson’s
is In re
practice,
attorney
annotation
be the better
where an
that,
capacity
fort the task itemized or that amount of time any particular spent on task was excessive. attempt no Apparently, made to have particular the Court allocate fees to a capacity. one who claims error bears *5 showing burden of such error to exist. That burden has not been met under the PLODZIK, Appellant, Edward W. record before this Court. The evidence was approved sufficient have OWENS-CORNING FIBERGLAS the entire claim for al CORPORATION, Appellee. though Appellees admittedly were enti $6,600.00 least tled at for administrator’s No. 12518. fees. Texas, Appeals Court of Civil error, Finding no reversible the two Austin. of error are points judg- overruled ment the trial Court is affirmed. March Justice, WARD, concurring. concur in judg-
I the affirmance Court, but, of the trial ment with the facts us, present before I put basis 241(a), and that the Court thereun- empowered der to award the Co-Ad- compensation ministrators application by their services. The the Co- testimony, Administrators and the en- hearing matter, for that tire was that money entitled to more than al- lowed under the first sentence of Section 241(a) regarding statutory percentage. Appellants complaint make no as to or to of any finding the lack pleadings prelimi- order that there the Court’s finding percentage that the nary method “unreasonably presumed low.” Such