I am unable to agree with the opinion written by Mr. Justice CHAPMAN in which Mr. Chief Justice BROWN and Mr. Justice BUFORD have concurred. *Page 219
At the outset I may say that I take no exception whatever to the reference there to the good faith of Mr. Harry H. Wells and the late Mr. W.B. Dickenson, who represented the appellee in the main litigation, or Mr. B.K. Roberts who assisted in the presentation of the petition for clarification which we have under consideration. Nothing appears in the record challenging their conduct and, on the contrary, counsel appearing for appellants have announced to the court their conviction that these gentlemen acted with propriety.
The behavior of appellee is a different story.
For the purpose of expressing my views it is necessary to refer to but part of the record, namely, the opinion in the principal case, Watts, et al., v. Newport, 6 So.2d 829, the original application for costs and fees, the order thereon and the present petition for clarification.
This Court reviewed the entire record in the appeal and decided that the circuit judge erred in reversing the ruling of the probate court holding a will of Letitia V. Graham, deceased, naming appellee principal beneficiary, void for the reason, among others, that the instrument was "the creature of fraud and imposition." Thus was established themisconduct of appellee in connection with the execution of the spurious will.
After our opinion was rendered there was presented here the application of Beatrice Newport, appellee, and her attorneys for costs, amounting to $3915.26, expenditures and attorneys' fees for conducting the litigation. Our attention was directed to Section 51 of The Probate Act and the conclusion was that ". . . this Court award to the petitioner, Beatrice Newport, *Page 220 her reasonable costs expended by her, and reasonable compensation for her services . . . and also reasonable attorneys fees for the use and benefit of her attorneys employed in this matter in this Court . . . the intermediate appellate court and also in the County Judge's Court . . . and . . . either fix the amount of costs, compensation and attorneys fees to to be allowed in each Court, or enter an order directing the County Judge . . . to determine the amount of and to allow the reasonable costs, compensation and attorneys' fees incurred in that Court, and further directing the Circuit Court . . . to determine and allow the amount of costs expended by the petitioner . . . in the proceedings in that Court, and reasonable compensation to her, and also to fix, determine and allow to her for the use and benefit of her attorneys of record reasonable attorneys' fees for their services rendered in that Court." (Italics supplied).
Upon that application an order, per curiam, was entered stating that to succeed under Sections 51, 94, 124 and 158 of The Probate Act it would have to appear that "the executor of the estate or proponent of the will acted in good faith, that his conduct was free from fraud and if attorneys fees were undertaken on a contingent basis . . . that the contingency materialized." The order concluded with the paragraph "The application is accordingly denied without prejudice to apply to the Probate judge, and if appellee can show that appellee acted in good faith, that the litigation has benefitted the estate, and that as to attorneys' fees if undertaken on a contingent basis and the contingency has materialized, then he may award such costs and attorneys' fees as to him may seem just and proper." *Page 221
The language we have quoted is objectionable to petitioners and deletion of the conditions embodied in it is asked in the petition to clarify.
The petition contains the statement "That said attorneys accepted employment on a contingent fee basis insofar as the payment of attorneys' fees by the said petitioner, Beatrice Newport, was concerned personally . . ."
Inasmuch as the petition for allowance of costs and fees was submitted to us we thought, and I think, that it was entirely proper to exercise the prerogative of announcing the rules by which the merits of the demand should be determined. Having the view expressed in the order would it not be more practical, more sensible and fairer to all parties to express it, than to send the case back without comment and then reverse it if the ruling did not comport with that view?
To my mind a contingent fee is one dependent upon the outcome of the suit and is recoverable in the event of success. In the instant case Beatrice Newport failed and the fee did not, therefore, materialize for the simple reason that the contingency did not occur.
I turn now to Section 51 of The Probate Act which, it is said, precluded the expressions already given on the allowableness of the claim. Discretion is given the county judge to award costs "abiding the result of each particular proceeding, but otherwise when it would be unjust that the failing party pay costs." The discretion cannot be arbitrary but is one that must be sound.
It is obvious that appellee owes no fees to counsel because of the failure of the contingency. The costs incurred were in the adjudication of a will declared *Page 222 fraudulent. Would it then be just to pay from the estate, to the consequent detriment of those interested in it, moneys expended by appellee or others in her behalf when the will offered by her for probate was bogus from its inception and her bad faith in connection with its execution was established? I think it would not and that in the state of a record which showed exhaustive search of the facts by one court and two reviews we should so announce, as we did.
The other clause of Section 51, supra, pertinent to this discussion, is that "An executor being prima facie justified in offering a will, in due form, for probate, shall generally receive his costs and attorney's fees out of the estate, even though he be unsuccessful." The words qualifying the rule are "prima facie" and "generally." If the instant case is not one justifying those qualifications it is difficult to conceive one. It is true that appellee was an executrix named in the will but it is also the fact that under it she was to receive practically all of a large estate and, to reiterate, this source of authority, as executrix, and riches, as beneficiary, was fraudulent from its beginning. This then, was not one of the cases where generally costs will be allowed.
I am fully conscious of the amount of time, energy and ability expended by counsel for appellee in the course of this lengthy litigation. I am aware, too, of the disappointment of those who have worked diligently meanwhile expecting sizeable reward for their services in a matter where so much was at stake but I feel that it is only fair frankly to appraise the value of the claim for costs and fees where the contract was one for a contingent fee and the instrument under *Page 223 which the client claimed was determined void because of fraud. I am convinced that candor will prevent any further unnecessary expenditure of time or money.
My conviction is that if no fee was due counsel by their client because the contingency did not occur, none is due them from the estate. Their claim, in the circumstances, could rise no higher than hers. I think the case is not one where the executrix should be reimbursed.
Of course, I have based these views on the record which I have re-examined. In the per curiam order opportunity was given to attempt to establish the good faith of appellee, the benefit of the litigation to the estate, the accrual of the right to a fee because of the happening of the contingency. It may be impossible to show any or all of these conditions but for the reasons given the matter should be determined once and for all with as little added expense as possible.
I am convinced that the per curiam order should stand without revision.
TERRELL, J., concurs.