Russell v. MoelingRussell v. Moeling
Lead Opinion
A nаmed 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 decedеnt’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 remаnded 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.,
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 prоbate. 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 оf 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
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 аdministrator 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 сlear: 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. Fallen,
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,
Can a person named executor in a will offer such will for probate, and, after its probate is refused on several grounds (one of which is that the executor and other beneficiaries named in the purported will had unduly influenced the maker thereof to execute same), in a later proceeding filed by him be allowed costs and reasonable attorneys’ fees — the court in the previous proceeding having entered a final judgment whereby all costs involved in the proceedings to probate the will had been taxed against said executor?
The holding in Huff, which denied to the executor the right to seek attorneys’ fees in a subsequent proceeding, was construed by the court of civil appeals opinion in thе instant case as one turning entirely on the fact that the executor had been found guilty of exercising undue influence upon the testator. We do not agree. The Huff decision did cite several cases wherein an executor was denied any expenses, regardless of when they were asserted, because of the existence of undue influence having bеen exercised by the executor upon the testator. However, the decision not to allow an executor to bring a subsequent suit to recover attorneys’ fees for an unsuccessful attempt to probate a will was not grounded upon this consideration alone because the opinion went on to point out:
We think that the executor could have had submitted to the jury, along with the other issues, the question of good faith on his part in offering the will for probate; and if the jury had found that, under allthe circumstances, he had acted in goоd faith, then he would have been entitled to judgment for such attorneys’ fees and court costs. This was not done; and the judgment became final. We do not think the rule should be extended further than this, in order to let him recover -in a subsequent suit. [Emphаsis added.]
The determinative fact in Huff then, which would likewise be controlling in the instant case, is the fact that the trial court’s judgment, probating the will and awarding costs, had become final and that the prior procеeding was the proper time to have made the claim.
We think that the better rule is to have the questions of good faith and just cause determined in the original probate of the will when all relevant information has been placed before the finder of the facts. To allow these questions to be brought in a subsequent proceeding does not properly utilize judicial machinery and is to further burden a decedent’s estate with administrative expenses and delay in the full distribution of the estate. This result would also be more in line with the rule of res judicata which in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial. Ogletree v. Crates,
For the reasons herein stated, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.
Concurrence Opinion
(concurring).
I concur in the Court’s judgment, but in my opinion Huff v. Huff,
It also seems unwise as a practical matter to require that the allowance of attоrney’s fees and expenses always be litigated in the context of an adversary will contest. If the interested parties were given the opportunity, the allowance would doubtlеss be handled on an amicable basis in some cases after resolution of the will contest. This would be quite likely where the expenses of the unsuccessful proponent are obviously reasonable and the personal representative of the estate is one whose personal fortune was not at stake in the will contest. The most that would be required is a simple motion by an administrator and an order of the probate court approving the allowance. Even that would not be necessary when the personal representative is an independent executor.