The appellee here filed a petition in the probate court for an accounting and distribution and for a reasonable allowance as attorneys fees for services rendered to the estate of E.L. Wartmann, deceased, in requiring a surviving executor to carry out the intention and purposes of the testator as expressed in his last will and testament. Among other provisions which showed a clear and unmistakable intent that the testator was very solicitous about the welfare of his wife, the will contained the following:
Ada B. Wartmann died on February 2, 1938, and the appellee here is the executrix of the Last Will and Testament of Ada B. Wartmann. After a long period of time and after many demands had been made upon the appellant, Wilton E. Johnson, as surviving executor, for an accounting and for distribution of the income from the estate of E.L. Wartmann, deceased, which had accrued at the time of the death of Ada B. Wartmann, and after many promises and without results, the petition for an accounting and distribution was filed.
Voluminous testimony was taken, many reports and accounts were received by the Probate Judge, constituting approximately 331 pages. The theory and contention of the surviving executor of the E.L. Wartmann estate as to the proper method of the accounting was materially different from that asserted by the executrix of the Last Will and Testament of Ada B. Wartmann, and if the theory and contentions of the surviving executor of the E.L. Wartmann estate could have prevailed, the intention of the testator, E.L. Wartmann, would have been defeated in withholding from Ada B. Wartmann's estate the income which had accrued in the E.L. Wartmann estate up to the time of the death of Ada B. Wartmann.
As a result of the testimony, reports, and accounts, the County Judge made an award to the appellee but failed to include (a) an item which had accrued to the estate of E.L. Wartmann as of the death of Ada B. Wartmann consisting of one-half of the net sum derived from the sale of fruit which has been fully produced by the partnership of Crosby-Wartmann, but had not been picked at the time of Mrs. Wartmann's death. This partnership constituting a major portion of the E.L. Wartmann Estate, and (b) refused to allow a credit to the extent of one-half of the inventory value of oil and coke on hand in the Crosby-Wartmann partnership as of the date of Mrs. Wartmann's death, and (c) refused to allow a credit to the extent of one-half of a sum arbitrarily charged off by the Crosby-Wartmann partnership for depreciation on farming tools and equipment and (d) refused to allow interest on the amount wrongfully withheld by the E.L. Wartmann Estate from the Ada B. Wartmann Estate, and (e) refused to grant the petition of appellee for allowance out of the E.L. Wartmann Estate of reasonable attorney's fees for services rendered by appellee's attorney to the E.L. Wartmann Estate.
The appellants appealed from the order of the County Judge to the Circuit Court alleging various errors and particularly in methods of accounting and allowing interest. The appellee filed a cross-appeal and cross-assignments alleging error of the County Judge in respect to the above-mentioned items which were not included in his award, including his refusal to allow attorney's fees for the services of appellee's attorney, to be paid out of the E.L. Wartmann Estate.
In due course, the Circuit Judge made an order in which he affirmed the County Judge to the extent of the amounts actually allowed to appellee by the County Judge, but reversed the County Judge's refusal to allow a credit to the extent of one-half of the net proceeds from the sale of fully produced fruit which remained on the trees of Crosby-Wartmann at the time of Mrs. Wartmann's death, the refusal of the County Judge to allow interest on the amount due the Ada B. Wartmann Estate and wrongfully withheld, and the refusal of the County Judge to award a sum of money to be paid out of the E.L. Wartmann Estate for the services of appellee's attorney in this proceedings. The Circuit Judge sustained the refusal of the County Judge to allow the depreciation item on farming tools and equipment, and his refusal to allow the item based on the inventory of oil and coke. The cause was remanded to the County Judge's Court for appropriate proceedings in accordance with his order.
Petitions for rehearing were heard, after which the Court made the following order:
On the 22nd day of June, 1951, the mandate of the Circuit Court was filed and recorded, and in part is as follows:
This appeal and cross-appeal is prosecuted from the final order and mandate of the Circuit Judge.
The method of accounting for business convenience and income tax purposes have little, if anything, to do with the intention of the testator. The important question in this case is to carry out the intention of the testator and that was for the executors, or the surviving executor, to pay all of the income from his entire estate to his wife "so long as she shall live". The County Judge in the exercise of his discretion attempted to carry out that purpose and intent of the testator and his findings and conclusions should not be disturbed in the absence of a clear mistake, or an erroneous application of some rule of evidence or of law. The Circuit Judge affirmed the County Judge in all respects except as to the three items above mentioned, to-wit, (1) one-half of the net proceeds from the fruit on the trees which had been produced, (2) the refusal to allow interest, as to which the Circuit Court allowed three per cent interest, and (3) the refusal to allow reasonable attorney's fees.
With reference to the one-half of the net proceeds from the fruit on the trees, it is clear that the County Judge made some mistake or applied the wrong
With reference to reasonable attorneys' fees, the County Judge denied the application for an allowance and the Circuit Judge disagreed with his conclusion and order on this subject.
The appellants assigned this part of the order of the Circuit Judge as error and urge some prior adjudications of this Court as authority for a reversal of the order of the Circuit Judge on this question. See the case of Lewis v. Gaillard, 70 Fla. 172, 69 So. 797, 798. This case was decided in 1915 and was long before the enactment of the Florida Probate Law. In that case attorneys' fees were disallowed because there was no equitable right of the Gaillards to assert a claim for attorneys' fees to be paid from a trust fund for "conducting a litigation instituted by them in which they sought to recover for themselves the entire trust estate * * * in which litigation they wholly failed in their efforts". The Court further held that the interest of the Gaillards in the litigation, instituted by them, was "adverse to the provisions of the testator's will". We have no such facts existing in this case nor the following statute on the subject at that time.
Section 734.01, F.S.A., contains the following:
This section is divided into two subdivisions (1) "any attorney who has rendered services to an estate", and (2) "or the personal representative".
As appears from this record the attorneys for the appellee did not represent "the personal representative", but did "render services to an estate", the L.E. Wartmann estate.
The only purpose of probating a will and for the existence of an executor is to carry out the purpose and intent of the testator as expressed in his last will. When it appears that the executor by the adoption of methods of accounting or reporting or otherwise is about to defeat the purpose and intention of the testator, the services of an attorney may be very necessary to aid the County Judge in arriving at the correct conclusion and issue proper orders requiring the executor to carry out the purpose and intention of the testator.
In this case there was no question about the validity of the will. It had been probated many years before.
The case of Watts v. Newport, 151 Fla. 209, 9 So.2d 417, 419, is relied upon by the appellants. In that case it appeared that an alleged will was in due form when offered for probate and the appellee was named as executrix. The Court said:
The appellants also rely on the case of In re Graham's Estate, 156 Fla. 421, 23 So.2d 485, 488, in which the Court said:
This case is entirely different from those cases where an attempt is being made to probate a will or to prevent the probation of a will.
The last paragraph of Section 732.14, F.S.A., covers the question of attorneys fees to be paid an executor in offering a will for probate, and Section 734.01, F.S.A., controls where an attorney has "rendered services to an estate".
In this case the will of Mr. Wartmann had been probated and its legality established. His intention that his wife should receive all of the income from his estate accruing during her lifetime is clear and unambiguous. Upon the death of his wife her legal representative was entitled to receive all of the income which had accrued up to the time of her death and which she had not received during her lifetime. There was a material dispute between the surviving executor of Mr. Wartmann's will and the executrix of Mrs. Wartmann's will. This dispute arose from different theories, contentions and practices in accounting, bookkeeping and making reports. Had the theories of the surviving executor of Mr. Wartmann's will prevailed, the intention of Mr. Wartmann, as expressed in his will, would have been defeated. In order to carry out the purpose and intention expressed in the will of Mr. Wartmann, the services of an attorney were necessary, to aid the County Judge in arriving at the correct conclusions and issuing proper orders to carry out this intention. These services were of value to the estate, and the Circuit Judge correctly remanded the case to the County Judge on this question for the purpose of finding, fixing and ordering a reasonable attorney's fee for the services rendered to the estate of E.L. Wartmann.
We have considered all of the other assignments and cross-assignments of error and do not find any reversible error.
Affirmed in part and reversed in part with directions for further proceedings in accordance with this opinion.
SEBRING, C.J., and CHAPMAN, J., and GILLIS, Associate Justice, concur.
Petition for Rehearing.
Upon a reconsideration of this case in the light of the petitions for rehearing filed by
The petitions for rehearing are denied.