(dissenting).
As I see it, the controlling question in this case is whether or not Raymond Salmon entered into a binding family agreement with the other beneficiaries named in the will of Mrs. Maria Hoben which provided that Mrs. Hoben’s will should not be probated. As stated in the Court’s opinion such an agreement is legal and enforceable in Texas. It is simply a time and expense saving device. Had the title to the deceased’s property passed to the beneficiaries under the will, they could have executed conveyances that would have vested title to such property in those who would take under the statutes of descent and distribution. Essentially then this is a contest between Raymond Salmon who says he did not accede to the family agreement and Fred Salmon who says that he did. This *34is a common species of litigation in which one party asserts the existence of a contract while the other party denies it. Under such circumstances, particularly in the absence of a claim for punitive damages, the general rule is that each party must pay his own attorney’s fees.
The Court construes Section 243 of the Probate Code as varying the general rule and says that such section is a “legislative declaration of the law as previously announced by our courts”. None of the cases cited in support of this statement involves a family agreement not to probate a will and I find no well considered authority prior to the adoption of the probate code which would support the allowance of attorney’s fees in a case like this, — which after all is essentially a dispute over whether a contract exists or not. It seems that any contention that Section 243 of the Probate Code provides for the recovery of attorney’s fees in the family agreement situation, must be predicated upon the proposition that such section constitutes new legislation giving rise to that right rather than being a restatement in code form of a rule of law heretofore announced by court decisions.
In my opinion, Section 243 is not new legislation and gives rise to no new rights. It is, as stated by the Court, simply a legislative declaration of the law as previously announced by our courts. I cannot however agree, in the absence of a controlling decision, that the law “-previously announced” would support a recovery in this case. I am in entire agreement with the doctrine which allows attorneys’ fees to a person named as executor in a will who in good faith, with probable cause and for the benefit of the estate prosecutes an action to probate a will. This, without regard for the outcome of the prosecution, because of a public policy against the suppression of wills. But, there is no public policy that militates against the family agreement which results in the non-probate of a will. Nothing is suppressed. If the agreement be valid, the beneficiaries are only doing what they have a legal right to do. Such agreements are neither illegal nor immoral. There is no sound reason in public policy why one who says there was no agreement should recover attorney’s fees regardless of success while one who asserts there was such an agreement could not recover attorney’s fees even if successful. There should be an equal balance of the scales. I would not allow attorney’s fees in cases like this until the time comes, if ever, when successful litigants in suits over contracts generally are allowed to recover attorney’s fees from their adversaries. Raymond Salmon is the only person who derives any benefit from this litigation. He, and not the Maria Hoben estate, should pay his attorney’s fees. Compare, In re Higgins’ Estate, 158 Cal. 355, 111 P. 8 (1910); In re Pryor’s Estate, 51 Cal.App.2d 735, 125 P.2d 511 (1942); In re Smith’s Estate, 165 Iowa 614, 146 N.W. 836 (1914). I would render judgment for the petitioner.