47 N.C. App. 183 | N.C. Ct. App. | 1980
Propounders question the propriety of awarding legal fees to caveators’ counsel and the amount of the award, to be paid from the assets of the estate.
Both parties rely upon the following statute:
Costs allowed either party or apportioned in discretion of court. — Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:
(2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, however, that in any caveat proceeding under this subdivision, if the court finds that the proceeding is without substantial merit, the court may disallow attorneys’ fees for the attorneys for the caveators.
The word “costs” as the same appears and is used in this section shall be construed to include reasonable attorneys’ fees in such amounts as the court shall in its discretion determine and allow: ....
N.C. Gen. Stat. 6-21.
This statute authorizes the trial court in its discretion to allow attorneys’ fees to counsel for unsuccessful caveators to a will. In re Will of Slade, 214 N.C. 361, 199 S.E. 290 (1938). The court is not required to do so. It is a matter in the discretion of the court, both as to whether to allow fees and the amount of such fees. Godwin v. Trust Co., 259 N.C. 520, 131 S.E. 2d 456 (1963); Mayo v. Jones, 78 N.C. 406 (1878).
Appellants contend the caveat had no merit at all and that the court abused its discretion in allowing counsel fees for caveators. The evidence strongly supports appellants’ argument. Caveators, before trial, abandoned their claims of lack of testamentary capacity and mistake on the part of the testatrix. That left remaining their allegation of undue influence exerted upon testatrix. Caveators do not allege who perpetrated this undue influence upon Mattie Ridge. The record is absolutely void of any evidence to substantiate the claim of undue influence. For this reason, the court allowed propounders’ motion for peremptory instructions on all issues.
In its order for counsel fees the trial court made no finding or conclusion with respect to whether the proceeding was without “substantial merit.” Under the evidence in this case, without such a finding we cannot determine whether the trial court properly exercised its discretion in awarding the counsel fees.
For this reason, the order allowing attorneys’ fees for caveators’ counsel and costs must be vacated and the cause remanded to the Superior Court of Guilford County for another hearing to determine the propriety of awarding attorneys’ fees to counsel for caveators and, if found proper, the amount of such fees. With this ruling, we do not decide nor intimate any opinion as to whether the amount of the attorneys’ fees awarded by the trial court was proper. However, we believe the trial court in determining an appropriate fee can properly consider the failure of caveators to present evidence in support of their allegations.
Vacated and remanded.