dissenting.
I respectfully dissent. The majority would deny the attorney for the executor his approved attorney fees theorizing that the trial court was without jurisdiction to hear the attorney’s claim even though the *59claim was approved by the alternate executor, the Corpus Christi National Bank. If, as the appellant claimed, the trial court was without jurisdiction to approve the attorney fee claim, it was equally without jurisdiction to hear the claim and contest by the appellants from which this appeal originates.
In May 1976, Wesley Gene Anderson died, and in June 1976, J. C. Anderson filed the will for probate in the probate court of Refugio County. Shortly thereafter appellants filed a will contest, and the suit was transferred to the district court of Refugio County. In July 1976, a new, separate and independent suit was filed by the children seeking to set aside the change of beneficiary designations of a life insurance policy. In September 1976, the application for probate and the suit seeking cancellation of the beneficiary designations were consolidated by the trial court into Cause No. 5036. The appellees filed a motion requesting the trial court to order J. C. Anderson to obtain separate counsel: one to represent himself individually; and a second attorney to represent him as Independent Executor of the estate of Wesley Gene Anderson, deceased. The trial court granted the motion. The appellee, Honorable John Miller, was retained by the executor to represent Anderson in his capacity as Independent Executor of the estate. A different attorney was employed by Anderson to represent him individually in the second consolidated suit. In February 1979, the case went to trial before a jury. After the announcement of ready by all parties, the appellants withdrew their contest to the probating of the will, reserving, however, the right to challenge the appointment of J. C. Anderson as Independent Executor. The will was then admitted for probate. Mr. John Miller, having completed his job, excused himself from the court and left. The case then proceeded to trial with appellants seeking cancellation of the beneficiary designations. The jury resolved the dispute against Anderson. The trial court then appointed the Corpus Christi National Bank, the named alternate executor under the will, the Independent Executor of the estate.
A judgment of this part of the lawsuit was signed on March 17, 1980. In July 1979, John Miller filed his claim for payment of attorney’s fees for his representation of the executor in the probate of the will. This claim, in the amount of six thousand five hundred seventy dollars ($6,570), was filed with the alternate executor of the estate, the Corpus Christi National Bank. The'appellants objected to the payment of the attorney’s fees. However, on September 10,1979, the bank, as independent executor, approved the claim. Thereafter, the claim was entered on the claims docket of the estate. Later, the appellants filed objections to the payment of said claim in the probate court.
On December 16, 1980, a hearing was held by the trial court on Mr. Miller’s claim for compensation. The appellants again objected to the claim. After the hearing, the court approved the claim and entered an order granting Mr. Miller his attorney’s fees. It is from this order approving appel-lee’s claim for attorney’s fees that appellants form the basis of their appeal.
Section 243 of the Texas Probate Code provides:
“When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will admitted to probate, whether successful or not, he shall he allowed out of the estate his necessary expenses and dis-bm'sements, including reasonable attorney’s fees, in such proceedings.” (emphasis added)
The procedural steps involved in presenting a claim against an estate are set forth in Sections 311 and 312 of the Probate Code which reads, in part, as follows:
“. .. (a) Claims Against Estates of Decedents. If a claim against the estate of a decedent has been presented within six months after the issuance of original testamentary letters or of administration, and all or part of such claim is allowed by the executor or administrator, the claim *60shall forthwith be filed with the county clerk of the proper county, who shall enter the same in its proper place upon the claim docket.
* * * * *
... (a) Contest of Claims. Any person interested in an estate or ward may, at any time before the court has acted upon a claim, appear and object in writing to the approval of the same, or any part thereof, and in such case the parties shall be entitled to process for witnesses, and the court shall hear proof and render judgment as in ordinary suits.
(b) Court’s Action Upon Claims. All claims which have been allowed and entered upon the claim docket for a period of ten days shall be acted upon by the court and be either approved in whole or in part or rejected, and they shall also at the same time be classified by the Court.”
In the present case, the court found in its order of January 19, 1981, that the claim for attorney’s fees had been duly presented to the Administrator, Corpus Christi National Bank, and filed on its claims docket. The court thereby ordered that the claim for attorney’s fees be approved and that “the temporary Administrator of the estate is hereby ordered to pay such claim as soon as possible.” No objection was made on appeal to the finding of facts by the trial court. The allowance for attorney’s fees was to the Administrator and not to the attorney. Miller properly presented the claim to both the Administrator and the court. The claim was approved and should be paid.
Appellants argue that a claim for attorney’s fees and expenses incurred can only be brought in the original probate proceedings and not as an ancillary matter, citing Russell v. Moeling, 526 S.W.2d 533 (Tex. 1975); and Huff v. Huff, 124 S.W.2d 327 (Tex. 1939). Both cases are distinguishable. Both cases involved a will contest by the Independent Executor. In each case, probate of the will was denied. Here, the appellants waived the contest to the probate of the will. There was no will contest at all. Regardless of how the controversy over the beneficiary designations was resolved, the appellants would have taken under the will, and the attorney representing the executor should have been paid. Sec. 243, Tex. Probate Code. Appellee Miller actually and properly represented the estate, as he was hired to do, in probating the will. It is inconceivable to me for the majority to argue that an attorney representing an estate for the Administrator should be required to submit issues of good faith on attorney’s fees in probating a will when there was no contest to the will. Actually, the contest over the fraud in changing the life insurance beneficiary was originally and finally a separate lawsuit and was appealed as such. Anderson v. Anderson, 618 S.W.2d 927 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ dism’d). It would have been a complete waste of time and money (assets of the estate) to have the attorney sit in on this part of the trial in which the executor should have been a disinterested person. The cases of Russell and Huff are not controlling.
The jurisdiction matter should be controlled by Section 5 of the Probate Code. It reads, in part, as follows:
“(b) In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate ... In contested matters transferred to the district court in those counties, the district court, concurrently with the county court, shall have the general jurisdiction of a probate court, . . . Upon resolution of all pending contested matters, the probate proceeding shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court.” (emphasis added)
In the present case, at the time attorney’s fees were sought, the probate matter was not final. It had not been transferred back to the county court. In my opinion, it is the *61appellants who do not have standing to complain on appeal.1
Under the circumstances, I would affirm the judgment of the trial court and allow the attorney his court-approved fee.
. The majority makes reference to the size of the attorney’s fee; that the fee exceeded the value of the estate; and that the attorney had not completed his work. These dicta-type remarks have nothing to do with the majority’s reason for reversing and rendering the trial court’s judgment and should serve no purpose for their opinion. The fee had been approved by the trial court; the real value of the estate was the policies of insurance (which were in the amount of $44,000); and no reason has been advanced for the attorney to sit through the contest concerning the insurance policies when the appellants removed their objection to the probate of the estate.