Pierce v. Tharp

455 S.W.2d 145 (1970)

Clifford D. PIERCE, Jr., Administrator Cum Testamento Annexo v. Ruth Liddell THARP et al.

Supreme Court of Tennessee.

May 18, 1970.

Rehearing Denied May 18, 1970.

*146 Joseph W. Evans, Memphis, for Talmage E. Mugrage, C.M. Murphy, Memphis, for Mrs. Frankie Tharp McKown.

Ray A. Bratcher and Clifford D. Pierce, Jr., Memphis, for complainant below.

John M. Heiskell and James S. Gilliland, Memphis, for Ruth Liddell Tharp.

Phil M. Canale, Jr., District Attorney General, and Eugene C. Gaerig, Assistant District Attorney General, for State of Tennessee.

OPINION

W.J. SMITH, Special Justice.

The one and only question to be determined in this case is whether the Solicitors for Talmage E. Mugrage and Mrs. Frankie Tharp McKown are entitled to their reasonable attorneys' fees and expenses in representing their respective clients in the litigation involving the construction of the last will and testament of James H. Tharp, deceased, in the Chancery Court at Memphis and in the Court of Appeals and the Supreme Court upon petition for certiorari from the Court of Appeals, to be charged against the corpus of the estate.

The Court of Appeals, 58 Tenn.App. 363, 430 S.W.2d 787, held that neither Talmage E. Mugrage nor Mrs. Frankie Tharp McKown had any interest in the estate of James H. Tharp, deceased.

Thereafter and upon the entry of the procedendo from the Court of Appeals in the Chancery Court of Shelby County, C.M. Murphy, Solicitor for Mrs. Frankie Tharp McKown, who was one of the defendants *147 in the cause filed a motion for a decree directing the administrator cum testamento annexo to pay his fee and expenses as a part of the cost of the cause. His motion was accompanied by an itemized expense account aggregating some $994.58. And, also by the affidavits of members of the Memphis Bar as to what would be a reasonable fee.

Joseph W. Evans, Solicitor for Talmage E. Mugrage filed his petition for solicitor's fee and expenses. His petition was accompanied by affidavits of members of the Memphis Bar suggesting a reasonable fee. The matters were presented to the Chancellor on September 20, 1968. The Chancellor entered a decree by which he denied said attorneys' compensation to be paid from the estate, to which action of the Court both of said attorneys excepted, and filed their petition in the Court of Appeals for writ of error. The Court of Appeals held that petitioners, C.M. Murphy and Joseph E. Evans had rendered valuable services in the cause and were entitled to compensation out of the funds in the hands of the Administrator cum testamento annexo. The decree of the Chancellor was, therefore, reversed and the cause remanded to the Chancery Court * * * for fixing of reasonable attorney's fees and expenses incurred in behalf of both petitioning attorneys for their services in the original cause brought by the Administrator C.T.A.

Petitions for certiorari were filed by both Clifford D. Pierce, Administrator C.T.A., and Mrs. Ruth L. Tharp, widow of decedent James H. Tharp, which were granted and the case has been argued at the Bar of this Court.

It is conceded that Mrs. Frankie Tharp McKown, an adopted sister of testator, and Talmage E. Mugrage, a natural brother, were necessary and proper parties to the original suit; and who contended that the trust undertaken to be established by testator's will was unenforceable and void, and consequently that they or one of them was entitled to inherit the residuary estate of testator. They also claimed that Mrs. Ruth Liddell Tharp was not the widow of James H. Tharp, deceased, because he was never legally divorced from his former wife, and therefore she was not entitled to share in the estate of James H. Tharp, deceased, except as provided for in his will, and that if she is legally his widow, she cannot dissent from his will because of an antenuptial contract. (Pierce v. Tharp, 58 Tenn. App. 362, 430 S.W.2d 787).

However, the Court of Appeals on the petition of the attorneys for fees (opinion filed May 28, 1969), quoted from the finding of the Chancellor as follows:

"Both of you were extremely helpful, and the briefs that were submitted were well done, and you represented the interests solicited for in a most able manner. Your services were not only a benefit to your client, but indirectly were helpful in investigating the background in permitting all of the people to be afforded. I don't doubt that."

And further the Chancellor said:

"* * * I have no authority to take from the estate, compensation for the benefit of solicitors who represented private individuals whose efforts, if successful, would have destroyed the trust rather than enhanced or improved it."

The Court of Appeals held that the Chancellor misapplied the rule with reference to allowing attorney's fees and remanded the cause for the fixing by the Chancellor or reasonable attorney's fees to the petitioning attorneys. Thereupon the Administrator cum testamento annexo, and the widow, Mrs. Ruth L. Tharp, filed petitions for certiorari and assigned errors on the action and decree of the Court of Appeals. The assignment of errors of both the Administrator C.T.A., and the widow, Mrs. Ruth L. Tharp are:

"The Court of Appeals erred in its ruling that solicitors for disappointed heirs whose interests were adverse to charitable trust established under will of *148 decedent, and who sought to have trust ruled invalid, were entitled to fees and expenses in will construction."

Assignments by the widow, Mrs. Ruth L. Tharp:

"1. The Court of Appeals erred in charging the estate with fees and costs for petitioners on the reasoning that petitioners' services in the will construction case resulted in benefit to the estate, when petitioner's purpose and effort was the advancement of their clients' interest in defeating the trust provided in the will, and any benefit resulting from a resolution of this matter was only incidental. 2. If fees should be allowed, the Court of Appeals, nevertheless, erred in assessing them against `the estate', and either should have made the charge against `the accumulated income from the trust', as sought by both the original unamended petitions, or should have remanded the cause to the trial court for exercise of its discretion in determining the source as well as the amount of the fees based upon its knowledge of all the facts and circumstances."

It must be borne in mind that both Mrs. McKown and Talmage E. Mugrage contended throughout the litigation that the trust created by testator's will was void and unenforceable; that she or he, as the case may be, was therefore entitled to inherit all of the residuary estate of James H. Tharp. Their position was antagonistic to the will which they sought to defeat insofar as the trust was concerned. Under such circumstances can it be said that the petitioners as counsel for Mrs. McKown and Mr. Mugrage rendered services beneficial to testator's estate? Pierce v. Tharp, supra.

The general rule is stated in Davis v. Mitchell, 27 Tenn. App. 182, 247, 178 S.W.2d 889, 915, thusly:

"Fees for the services of an attorney not employed by the personal representative are sometimes allowed out of the assets but only where the services have inured to the benefit of the estate. The estate here is a trust for a specific purpose. In view of the conclusion we have reached as to the construction of the will, the services rendered by the plaintiffs in error must be regarded as designed and calculated to bring about a breach of the trust, not preserve it. There is, we think, no rational basis for charging the estate with the payment for services of that kind. While the situation was somewhat different in the case of Tramell v. Tramell, supra, the rationale of the conclusion denying a similar claim is against the allowance in this case." Davis v. Mitchell, supra, was cited with approval by Mr. Justice Tomlinson in Nicholas v. Wright, 204 Tenn. 533, 322 S.W.2d 223.

In Tramell v. Tramell, 162 Tenn. 1, 32 S.W.2d 1025, testator published his will in which he, among other provisions, created a trust. His son filed a bill to construe the will alleging (1) that testator be declared to have died intestate as to all personal property; (2) that a trust created by certain items of the will be declared void as creating future estates in violation of the rule against perpetuities. The Chancellor denied, on application of complainant to charge the fees of his solicitor against the estate, and from this part of the decree complainant appealed. In passing on the question thus presented this Court said:

"We concur with the chancellor that the cause is not one in which the complainant is entitled to have the fees of his counsel paid as a part of the expenses of the administration of the estate of the deceased. The suit was filed to maintain rights asserted in opposition to the will and not under it, necessitating the employment of counsel by the executors and trustees to defend the will and the trust estate created thereunder. * * *"

*149 In Vanderbilt University v. Mitchell, 162 Tenn. 217, 36 S.W.2d 83, the trustee under the will of Thomas E. Mitchell filed his bill seeking a construction of the terms of the trust. The original bill was filed ex parte, and the Chancellor designated a member of the Bar amicus curiae, requesting brief and argument from him. Subsequently by amended and supplemental bill certain heirs and next of kin of testator were made parties. The final decree reciting that counsel for the trustee consented to the allowance of a fee to counsel for defendants, and the Court said:

"* * * The services of all counsel have contributed to the preservation and proper execution of the trust. `It is a doctrine of equity that a trust fund of right should bear the expenses of its own administration.'" (citing authorities)

But, unless the petitioning attorneys contributed some benefit to the preservation of the trust estate they are not entitled to a fee out of the trust fund. Henshaw v. Flenniken, 183 Tenn. 232, 191 S.W.2d 541; Gilpin v. Burrage, 188 Tenn. 80, 216 S.W.2d 732; Draper v. Draper, 24 Tenn.App. 548, 147 S.W.2d 759, notwithstanding the rule that a trust estate should bear the expense of the administration of the trust. Moore v. Neely, 212 Tenn. 496, 370 S.W.2d 537.

This Court in Marler v. Claunch, 221 Tenn. 693, 430 S.W.2d 542, held that counsel for the widow of decedent who filed a bill under the declaratory statute within less than three months after the date of probate was not entitled to a fee for his services to be paid out of the assets of the estate. In so holding Mr. Justice Creson, speaking for the Court, had this to say:

"* * * We do not perceive one iota of justification for the view that complainant's counsel's efforts were directed to the advantage of the estate, as such, or that of the testamentary beneficiaries thereof."

The test by which the question involved herein is to be determined is whether the services rendered by the attorneys for Mrs. McKown and Mr. Mugrage inured to the benefit of the entire estate as distinguished from services rendered to individuals claiming an interest in the estate. Third National Bank v. Cohn, 194 Tenn. 637, 254 S.W.2d 741.

The position of Mrs. McKown and Mr. Mugrage was (1) that the trust created by the will of James H. Tharp was void and unenforceable; (2) that she or he, as the case may be, was entitled to inherit all of the residuary estate of testator, each was cast in her or his position in the suit. Pierce v. Tharp, 58 Tenn.App. 362, 430 S.W.2d 787.

With utmost deference to counsel for Mrs. McKown and Mr. Mugrage, we must hold that their fees and expenses cannot be paid from the assets of the estate of James H. Tharp, deceased.

It follows that the decree of the Court of Appeals will be reversed and that of the Chancellor affirmed.

The cost of the appeal is taxed against Mr. C.M. Murphy and Joseph W. Evans.

DYER, C.J., CRESON, and McCANLESS, JJ., and JENKINS, Special Justice, concur.