MATTIE J. SMITH, ET AL.,
v.
ELLEN ALKIRE CALLISON, ET AL.
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This case concerns whether a county probate judge can order payment of attorney's fees to unsuccessful will contestants from the estate assets when the attorney was hired on contingency. The Florida Supreme Court holds that such an award is improper when the contestants' litigation is designed to destroy the will and benefit themselves, not the estate.
The court holds that a probate judge does not have authority to award attorney's fees to unsuccessful will contestants and their counsel. Such an award is improper when the litigation's primary object is to destroy the will and benefit the contestants personally, contrary to the will's provisions and adverse to the interests of those named in the will.
“Any attorney who has rendered services to an estate, or the personal representative, may apply to the court by petition for an order making an allowance for attorney's fees, and after notice to persons adversely affected, the court shall make such order with respect thereto as shall be proper.”
The statutory provision (Section 158 of the 1933 Probate Act) under which the probate court purported to award fees, which the court found inapplicable to unsuccessful contestants.
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Join FLexlaw to unlock all legal intelligenceNicholas P. Alkire, a Florida resident, died and left a will that was admitted to probate. The appellees thereafter sought to revoke the probate throu…
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Nicholas P. Alkire, a resident of the State of Florida, died leaving a last will, and testament. The will was duly admitted to probate. Thereafter, appellees unsuccessfully sought, by appropriate proceedings, to revoke the probate of said will. They were represented in their efforts by an attorney, who took the employment on a contingent basis, and who has not been compensated for his services.
Under such circumstances, does the county judge have authority to order payment of an attorney’s fee to such unsuccessful litigants, or their attorney, to be made out of the assets of the testator’s estate?
If there is authority for such an allowance, it must be found in Section 158 of the 1933 Probate Act, c. 16103, which reads as follows:
“Any attorney who has rendered services to an estate, or the personal representative, may apply to the court by petition for an order making an allowance for attorney’s fees, and after notice to persons adversely affected, the court shall make such order with respect thereto as shall be proper.”
The order, or judgment, of the probate court in this case allowed an attorney’s fee to the unsuccessful contestants, finding that the legal services which had been rendered by the attorney in attempting to upset the will “were beneficial *517to said Estate in determining whether or not said will should be admitted to probate.”
We think that the entry of such order was unwarranted. This is not a case where counsel has been employed to obtain or create a fund for the joint benefit of all parties, and has been successful in his efforts. Lewis v. Gaillard, 70 Fla. 172, 69 So. 797. Neither is this a case where an attorney represents one who is named as executor in a will which is apparently valid on its face, and who in good faith offers the will for probate. Watts, et al., v. Newport, 150 Fla. 209, 9 So. (2nd) 417. The case now before us is one where the main object of the litigation is to destroy the will and to recover the corpus of the property for the contestants, themselves, contrary to the provisions of the will and adversely to the interests of all persons named therein.
Under these facts, it cannot be said that such unsuccessful contestants, or their attorney, have “rendered service to an estate, or the personal representative,” within the purview of the Probate Act. The allowance of the attorney’s fee, therefore, was erroneous; and the judgment must be reversed.
It is so ordered.
BUFORD, C. J., TERRELL, THOMAS and ADAMS, JJ., concur.
BROWN and CHAPMAN, JJ., dissent.
dissenting:
Under the peculiar circumstances of this case, I think the county judge was justified in finding that the services of the attorney were of value to the estate, and that the judgment affirming his order should be affirmed.
BROWN, J.,
dissenting:
Under the peculiar circumstances of this case, I think the county judge was justified in finding that the services of the attorney were of value to the estate, and that the judgment affirming his order should be affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re Wilmott's Estate, 66 So. 2d 465 (Fla. 1953)…ust purpose had failed and hence they were entitled to the remainder. Lewis v. Gaillard, 70 Fla. 172, 69 So. 797. Fees 'have likewise been denied to counsel for parties who attempted unsuccessfully to revoke the probate of a will. Smith v. Callison, 152 Fla. 516, 12 So. 2d 381. The applicant in each case, a moving party in litigation brought to overthrow a duly established instrument, was wholly unsuccessful in his efforts to destroy the instrument or instruments under attack. This Court has more recently…
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In re the Est. of Letitia v. Graham, 156 Fla. 421 (Fla. 1945)…om the fund for his services. Lewis, as Executor etc., et al., v. Galliard, 70 Fla. 172, 69 So. 797. And in order for attorneys to recover under this Section the services rendered must have benefitted the estate. Smith, et al., v. Callison, et al., 152 Fla. 516, 12 So. (2nd) 381. Section 51 of the Probate Act, Section 732.14, F.S.A., is as follows: “732.14 Costs. In all probate proceedings costs may be awarded in the sound judicial discretion of the County Judge, ordinarily abiding fhe result of each par…1 / 2
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In re Est. of Iva Neil Blankenship v. J. L. Reed & SON, 136 So. 2d 21 (Fla. 2d DCA 1961)…rolling in this instance, because in each of these the attorneys were employed on a contingent fee basis so that recovering nothing, there was no fee to be paid to them. Appellees further cite as authority for their position Smith v. Callison, 1943, 152 Fla. 516, 12 So. 2d 381, and Lewis v. Gaillard, 1915, 70 Fla. 172, 69 So. 797. The former involved a claim of fees in an action to revoke the probate of a will, and the latter to assert an interest adverse to the provisions of a will, and neither are control…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lewis v. Gaillard, 70 Fla. 172 (Fla. 1915)
- Watts v. Newport, 151 Fla. 209 (Fla. 1942)