Clаude W. RUSSELL, Administrator, Petitioner, v. Branch R. MOELING, Respondent.
No. B-5129.
Supreme Court of Texas.
July 16, 1975.
Rehearing Denied Sept. 24, 1975.
533 S.W.2d 303
WALKER, J., not sitting.
The State requested “schedules or documents showing the Company‘s intra-state toll rate based for the last yeаr available at original cost and fair value.” The response from the Company was that “this information requested is not available from records kept in the regular course of our business.”
It is fairly inferable from the testimony of rеpresentatives of Bell that the amount of the increase—$45,000,000 annually—was arbitrarily developed in the St. Louis office of Bell as the desired amount of additional revenue to be derived from its intrastate operations in Texas, with the rates to be accordingly adjusted; and that the increase was designed to raise the rate of return for the company in all its operations. This increase was sought to be justified on the basis of rising inflation and in order to attract new capital. The expert witness presented by the State testified that his studies indicated that the return from the rate increase on intrastate long distance operations would be in excess of 17 per cеnt and could go as high as 20 per cent; and that there is a strong probability that the increase is unreasonably high. Without undertaking a detailed recitation, we hold that the evidence of the State was sufficient to invoke the discretionary power of the trial court to temporarily enjoin Bell from placing in effect the rate increase.
We agree with Bell that the temporary injunction order of the trial court is too broad in its terms reading as follows: “It is accordingly ordered that the Defendant, Southwestern Bell Telephone Company, be and it is hereby temporarily restrained pending hearing hereon from increasing the intra-state long distance rates charged to its Texas customers . . . .” We therefore reverse the judgment of the Court of Civil Appeals and modify the judgment of the trial court so as to temporarily enjoin Southwestern Bell Telephone Company from placing in effect thе long distance intrastate telephone rate increase announced to become effective March 1, 1975, pending final trial. The judgment of the trial court as modified is affirmed.
WALKER, J., not sitting.
Carter, Jones, Magee, Rudberg, Moss & Mayes, John E. Agnew, Dallas, for respondent.
DENTON, Justice.
A named 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 decedent‘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 remanded the cause to the district court, holding that the executrix is entitled to reasonаble 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., 517 S.W.2d 912. We reverse the judgment of the court of civil appeals and affirm the judgment of the district court.
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 probаte. 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.
Subsequеntly, 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 judgmеnt. Upon appeal to the court of 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
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
When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any procеeding 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 clear: the executor or administrator “shall be allowed out of the estate his necessary expenses and disbursements.” The purpose then is to pay thе 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. Fullen, 172 S.W.2d 118 (Tex.Civ.App.—Beaumont 1943, writ ref‘d w. o. m.). We are presented here, however, with a situation where the unsuccessful executrix of the 1965 will and her attorneys had entered into a contingent fee agreement which provided that if the probate of the 1965 will was successful, the attorneys were to receive a percentage of all moneys they recovered. The earlier will was not probated and therefore the executrix named therein was not faced with any expense for the legal work that had been done since nothing was recovered. Young v. Grisham, 163 S.W.2d 842 (Tex.Civ.App.—Eastland 1942, writ ref‘d w. o. m.). Consequently, under the terms of
With reference to the administrator‘s argument to the effect thаt 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, 132 Tex. 540, 124 S.W.2d 327 (1939). The precise question presented in that case was set out by the court as follows:
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 thеreof 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 the 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 cаses wherein an executor was denied any expenses, regardless of when they were asserted, because of the existence of undue influence having been exercised by the executor upon the testator. Hоwever, 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 becausе 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 all
the circumstances, he had acted in good 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. [Emphasis 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 proceeding 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 fоrmer trial. Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963), see Steakley & Howell, Ruminations on Res Judicata, 28 Sw.L.J. 355 (1974).
For the reasons herein stated, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.
Concurring opinion by WALKER, J.
WALKER, Justice (concurring).
I concur in the Court‘s judgment, but in my opinion Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327, does not hold that the claim for attorney‘s fees and expenses must be established in thе original will contest. If it does, the case should be overruled to that extent. The rule now adopted by the Court will not be workable in cases where there is no personal representative of the estate who can bе required to observe an order allowing attorney‘s fees and expenses rendered by the probate court in the will contest. In the absence of a pending administration, the probate court could not make an оrder for allowance of attorney‘s fees and expenses that would be binding on the heirs. Nor could it make one that would be binding on an independent executor.
It also seems unwise as a practical matter to requirе that the allowance of attorney‘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 doubtless 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.