dissenting.
I would grant appellee’s motion for rehearing and affirm the judgment of the trial court for the reasons stated in my dissent. I would add the following with reference to the appellant’s sufficiency of evidence points of error:
Where, as here, we have a non-jury trial and no findings of fact and conclusions of law requested or filed, it will be implied that the trial court made all findings necessary to support its judgment. Burnett v. Motyka, 610 S.W.2d 735 (Tex. 1980). The rule is that we must affirm the judgment on any theory that finds support in the evidence. Turberville v. Upper Valley Farms, 616 S.W.2d 676 (Tex. Civ. App.—Corpus Christi 1981, no writ). We do not look for a theory to reverse and render a trial court’s judgment under these circumstances.
In reviewing “no evidence” points, this court must look only at the evidence tending to support the judgment, disregarding all contrary evidence and inferences. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951); R. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 359 (1960). In passing on “insufficient evidence” points, we must consider all the evidence, including that which is contrary to the trial court’s judgment. Burnett v. Motyka, 610 S.W.2d 735 (Tex. 1980); R. Calvert, supra.
In the instant case, the required elements for recovery of attorney’s fees include 1) good faith and just cause in the prosecution of a proceeding to probate the will, and 2) a showing that the fee is reasonable. Tex. Prob. Code Ann. § 243 (Vernon 1980). Attorney Miller’s testimony that he was hired as an attorney for J. C. Anderson as proponent of the will of his brother is undisputed. The evidence reflects that the hiring of a separate attorney to represent Anderson as executor was at the insistence of appellants. This amounted to a waiver by them of the position they now assert. At the probate hearing, appellants withdrew their contest. Thus, Anderson was successful not only in having the will admitted to probate, but in his representation of the executor. These uncontroverted facts are sufficient to support the inference of good faith and just cause in prosecuting that portion of the consolidated trial.
Miller also testified without dispute regarding the amount of time he spent on the *62case and the types of work he did. He submitted his claim to the executor. The claim was approved by the (Alternate) Executor. The trial court approved the claim. The evidence of reasonableness is undisputed and is sufficient. The majority opinion ignores all of the above.
Because the claim was properly and timely presented under the circumstances, and because the evidence is sufficient to support the award, I would grant the motion for rehearing and affirm the judgment of the trial court.