172 S.W.2d 118 | Tex. App. | 1943
This action is a contest of certain items-in the final account of appellee, Otis. E.. Fullen, as temporary administrator of the estate of George R. Thomas, deceased. The contestants are W. P. Smith, temporary administrator, and Mark Thomas,, sole beneficiary of the estate. By their first pleading they challenged more than, thirty items in the account, but they subsequently abandoned their contest as to all except four of the items. These items are (1) $500 balance for “commissions and. services,” (2) $19 “expenses,” (3) $159' “expenses and commissions,” all claimed by Fullen and paid to himself. And (4) $200 paid by Fullen to W. O. Bowers as. an attorney’s fee. All items were paid out of funds of the estate without application, first being made to the probate court, but were fully itemized in the final account,, supported by vouchers and checks. The county court overruled the contentions of contestants and approved the account as-submitted. On appeal, the district court on trial to a jury withdrew the case from the jury at the conclusion of the evidence- and thereafter entered judgment denying, the contention of contestants and approving; the final account in toto. This appeal by W. P. Smith and Mark Thomas is from, that judgment.
As to the item of attorney’s fee of $200 paid by Fullen to W. O. Bowers, appellants do not contend that the services-were not rendered or that the fee was not fair and reasonable. They contend that Fullen was without authority to pay the-money to Bowers and in fact did so in. violation of the orders of the court. They also contend that the other three items.
As to the item of $500, it was contended that the proof did not conclusively show that Fullen had earned that sum because only he, the interested party, testified that it had been earned. The contention is overruled. Mr. Fullen- represented the estate as executor for about three years, and for an additional year as administrator. The total amount of the fee claimed by Mr. Fullen, including the $500 involved here, amounted to $1,000. There were expense items of something over $200. His testimony showing the extent of his work in connection with the litigation, handling of the properties of the estate and .suits for recovery of property for the estate, is fully corroborated by the ex
It should be noted that the account under attack covered services rendered and expenses incurred by Mr. Fullen as inde-. pendent executor and as temporary administrator. Statutes applicable are different from those relating to administration generally. Dallas Joint Land Bank v. Maxey, Tex.Civ.App., 112 S.W.2d 305, and authorities cited. Also, the account here attacked has been approved by the probate court upon full hearing of this contest; also by the district court which facts distinguish this case from most of the authorities relied on by appellants.
The judgment is affirmed.