OPINION
NYE, Chief Justice.This is a suit by Adrienne Neel in her capacity as independent executrix of the estate of her deceased husband C. B. Neel to recover a portion of attorney fees due from the surviving member of the law firm in which her husband was senior member. The case was tried before a jury. Based on special issues answered, the trial court entered judgment for Mrs. Neel in the amount of $21,900.00. This was the amount the jury found to be her share of the reasonable value of the legal services rendered by the law firm up to the time of her husband’s death. The succeeding member of the law firm appeals, complaining principally that the judgment in favor of the widow is excessive. We affirm.
Appellant Seaman’s first point of error is:
“Judgment should not have been rendered on the verdict because $36,500.00 as the fee for the amount and kind of the work done in the short period involved is excessive to the point being unconscionable.”
Rule 440, Texas Rules of Civil Procedure, provides:
“In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed.”
The Supreme Court of Texas has held that a determination of excess by a Court of Civil Appeals is one of fact. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956). Our high court has reaffirmed that such a determination is factual when it made clear that the responsibility of the various courts of civil appeals is the same as that of the trial courts. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959); see also Coastal States Gas Producing Company v. Locker, 436 S.W.2d 592 (Tex.Civ.App.— Houston 14, 1968).
The Honorable Eugene L. Smith, in an article entitled Texas Remittitur Practice, 14 Southwestern Law Journal 150, agrees that a determination of an excess judgment in an unliquidated damage case is one of fact. He suggests that a prudent lawyer who wishes to attack a verdict as excessive would do well to allege that the verdict was “so excessive as to be manifestly un*432just”, “without support in the evidence”, and/or “against the overwhelming weight and preponderance of the evidence.” However “All the Court of Civil Appeals can do, and all that is required of it to do is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would he reasonable compensation . . ., and treat the balance as excess. . . . ” Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916); Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).
A review of the evidence shows that Judge C. B. Neel was a distinguished lawyer and practitioner in Corpus Christi. He died in January 1965. For some twenty-five years prior to his death, Dr. J. H. Harvey had been a friend and client of Judge Neel. In 1951 Judge Neel employed John G. Seaman, the defendant, to work in his law office. Less than a year and a half prior to Judge Neel’s death, he and Seaman entered into an agreement whereby their respective interests and ownership in the future operation of their law office were set out and agreed upon. In a three-page, single-spaced letter agreement, Judge Neel proposed to Seaman certain terms for the settlement and termination of their association as lawyers in the event of death, illness, disability or retirement of either of them. It was evident from such agreement, that the firm and law practice belonged to Judge Neel up until this particular time. The letter, for instance, acknowledges that the library belonged to Judge Neel and the administration of the office and bank account was carried in Judge Neel’s name. The agreement authorized Seaman to carry on the firm in the firm name in the event of Judge Neel’s disability or upon his death, if Seaman was still practicing with Judge Neel at such time. The agreement gave Seaman the option to purchase the law library, title opinions and files. It provided specifically for the settlement of contingent fees, property taken in as fees and gave to Seaman all the fees for work performed by him, one month after Judge Neel’s death. It then stated, however, that:
“ . . . If any work has been done upon any matters in the office prior to my death or retirement, then you and my representatives, in the event of my death, or myself upon retirement, shall agree upon the division of these fees (that had accrued up until the time of his death (upon an equitable basis taking into consideration the amount of work theretofore done, and as to the amount of work thereafter to be done." (Emphasis and Parenthesis supplied)
Seaman accepted Judge Neel’s proposal.
On December 17, 1963, a will for Dr. J. H. Harvey was drawn by the firm of Neel & Seaman in which the Corpus Christi Bank & Trust Company was named Independent Executor of the Estate and trustee of a perpetual type trust set up principally for various charitable organizations. In the next to the last article of the will, it stated that:
“The executor and trustee shall employ Neel and Seaman (C. B. Neel and/or John G. Seaman) as attorneys, or attorney, for the estate of J. H. Harvey, deceased, and the trust created herein; but upon the refusal or inability of the survivor of them to act, then the executor and/or trustee shall employ counsel of their own choosing and pay to the attorneys acting for such executor and trustee reasonable fees for their services." (Emphasis supplied)
On January 8, 1965, Dr. Harvey died leaving an estate consisting primarily of land and oil, gas and mineral interests valued in excess of 2½ million dollars. Immediately upon Dr. Harvey’s death, the Corpus Christi Bank & Trust Company employed Neel and Seaman as their attorneys. Judge C. B. Neel commenced at once the business of representing the independent executor in the probate of this estate. Judge Neel conducted the initial interview with the executor relative to Dr. *433Harvey’s estate; prepared the application for the probating of the will; set the hearing for such application; and attended and conducted the hearing in the probate court on behalf of the estate which culminated in admitting the will to probate. He prepared the order probating the will. He secured the necessary judicial approval of the order, and prepared and filed the oath of the independent executor.
On January 29, 1965, Judge Neel died. Seaman succeeded to the law practice of Neel and Seaman conducting the same under the firm name. He continued to represent the executor of Dr. Harvey’s estate. All matters relative to the financial arrangement of the law firm were settled and concluded with Seaman buying the library and settling all accounts with Judge Neel’s widow, except the Harvey estate. Seaman continued his law practice by himself for several months and then joined the firm of Keys, Russell, Keys & Watson. He became a partner in their firm.
In January 1966 Seaman billed the executor for $15,000.00 for “professional services rendered.” This was promptly paid by the Bank. On January 4, Seaman wrote to Mrs. Neel stating that he had collected the sum of $15,000.00 from the Bank as executor of Dr. Harvey’s Estate for services in connection with the estate. He stated that:
“In accordance with the letter agreement between Judge and myself, and taking into consideration the services rendered to the Estate prior to the Judge’s death, and after careful consideration and much study, it appears to me that your fair share of the total fee to he charged in the Harvey Estate would be the sum of $5,000.00, and I hand you herewith check of this firm in the said amount as payment in full in connection with said estate.” (Emphasis supplied)
A few days later, Mrs. Neel returned the check to Seaman stating that she was returning the check because:
“ . . . I feel the present time and this check in the amount of $5,000.00, is premature.
“After the Harvey Estate is finally and completely settled, I will be happy to fully discuss the Neel and Seaman partnership settlement of this matter with you and Mr. Keys.”
In July 1966, Seaman billed the executor for another $15,000.00 for “professional services rendered.” This was also promptly paid without question. Seaman made no further written offer then, or any time thereafter, to settle the fee with Mrs. Neel except upon the initial unilateral proposal made in January 1966. Whereupon Mrs. Neel, as independent executrix of the estate of C. B. Neel, brought suit against Seaman to determine and adjust the contractual rights which grew out of the letter agreement between Judge Neel and Seaman while they were practicing together.
During the trial, the Honorable Robert W. Blount, an attorney and head of the Trust Department of the Corpus Christi Bank & Trust, testified relative to the Harvey Estate. He stated that he was Vice President of the Bank as well as the trust officer. He said he had the primary responsibility for the handling of the Harvey Estate. He testified that the Bank as executor had employed Neel and Seaman as their attorneys to probate the Harvey estate. He testified in effect that the Bank had always employed the lawyer or lawyers named in a will as a matter of policy; that this was also the same policy of the two other institutions where he had worked. He testified that although Seaman had joined a new firm, the Bank would continue to employ Mr. Seaman as their attorney for the estate and the subsequent trust as directed by the will. On direct examination he said that, the only way the Bank would discharge the attorney so employed, would be if the attorney totally failed to carry out the wishes of the deceased.
*434Turning now to the evidence concerning the fee arrangement: The will called for the payment of a reasonable fee. Both trust officers of the Bank stated that the executor would be willing to pay a reasonable attorney fee in connection with the probate of the estate. Blount stated that he had always adhered to the policy of approving the fee of an attorney, if the attorney submitted his fee based upon the recommended minimum set by the State Bar; that they would honor such fee as he had always felt that an attorney could enforce such a fee in a court of law, anyway, if it was based upon the minimum fee set forth by the State Bar of Texas. He testified further that most attorneys that he had dealt with throughout the years, based their fee upon the recommended minimum set by the State Bar. Evidence later received was, that the State Bar minimum fee was 3% of the gross estate.
Mr. Morrison, the Bank’s trust officer at the time of the trial and who had been with the Bank about ninety days, acknowledged that the Bank would have the duty to pay a reasonable fee in connection with the Harvey estate. He stated that he had practiced law in San Antonio before coming to Corpus Christi; that basically the recommended fee in San Antonio, was 3% of the gross estate as is contained on the estate tax return. Although he did state that the Harvey fee would require some substantial study, he admitted that the 3% fee “would be in the ball park”. The minimum fee schedule adopted by the State Bar, calls for additional fees for additional services. This may account for Morrison’s statement requiring substantial study.
Mrs. Neel called the Honorable Richard B. Stone, a practicing attorney in Corpus Christi as an expert witness. He was presently serving as President of the Nueces County Bar Association. He testified that 3% of the gross estate would be a fair minimum fee for handling an estate of between 2½ and 3 million dollars. That so far as lawyers in Nueces County were concerned, they had, by and large, been following the 3% figure. He also testified that in his opinion and from his experience that one of the factors in the division of fees between attorneys, is the consideration of who actually produced the work or the client. After a lengthy direct and cross-examination, witness Stone testified that he had an opinion as to a reasonable fee for the work done by Neel and Seaman up to the time of Judge Neel’s death. The following hypothetical question was put to him:
“Q I would like for you to assume the following facts as being true, that there was two lawyers associated in the practice of law in Corpus Christi, Neuces County; that a client came and asked that a will be prepared; that this will provided that the Corpus Christi Bank & Trust would be the independent executor of that estate; that the will also provided that this law firm shall be appointed as attorneys for the estate and as attorneys for a trust which was created by the instrument which provided that the bulk of the estate would go to charitable institutions, the income from the estate would go to charitable institutions, and that the remainder of — that the money would remain in trust and only the income would go these beneficiaries; that it was to be perpetuity, the trust. I would like for you to further assume that the testator of this will died and that the estate had a gross value for the purpose of taxation of not less than $2,539,000; that one of the attorneys gathered the initial information concerning getting the material ready for probating the will; that a responsible officer, a trust officer of this bank and trust has testified under oath that he would pay or be agreeable to paying a three per cent of the gross taxable fee as an attorneys’ fee; that after the death of the testator, one of the lawyers did the following things: That he conducted the initial interview and gather the material relevant to filing of the application; that he prepared the application for the probating of the will. He had the application set down for a *435hearing. He attended and conducted, on behalf of the estate, a hearing on the above application; that he prepared the order probating the will. He secured the necessary judicial approval of such order and that he prepared and filed the oath of the executor; that thereafter, he died. Now, taking into account those factors, what, in your opinion do you believe would be a fair — ” (objection)
“ * * * fee for the work done up until that time, the time of the death of the lawyer that I have referred to ?
A In my opinion, the reasonable value for those services down — up to that time would be $38,000.”
The testimony was virtually undisputed that a reasonable minimum fee for the probate of an estate of the size of the Harvey estate would be 3% of the gross estate. This would amount to a reasonable minimum fee of from $76,000.00 to $80,000.00. The Bar Association's minimum fee schedule further provides for additional fees for additional work in connection with an estate. There is absolutely no question that a reasonable fee would be charged and collected in this case. The testator in his will directed the executor bank to pay a reasonable fee. The Bank acknowledged its duty and willingness to pay a reasonable attorney’s fee. The appellant admits he will charge only a reasonable fee.
Appellant, on the other hand, throughout his brief attempts to equate the fee to an hourly charge. Only one witness testified that a reasonable fee for the work performed should be based on an hourly basis. However, all of the other witnesses (four in number) plus the appellant himself rejected this basis. One of the reasons that we consider that the Bar Association’s recommended minimum fee is based on a percentage, is that a fee based on strictly an hourly rate would not be fair to the lawyer or the client. Numerous times throughout the trial the appellant was given an opportunity to testify as to what a reasonable fee would be in the case at hand. He steadfastly refused. He admitted that he had collected $30,000.00 on two billings without the same being set on an hourly basis. He admitted that he would expect to receive an additional $30,000.00 for a total of at least $60,000.00.
There was evidence that approximately one half of the items necessary to be performed by attorneys in connection with the probate of an estate, had been performed by Judge Neel. This included the very important initial interview with the client, and the securing of the employment for the law firm. We recognize the importance of this initial interview by Judge Neel on behalf of the law firm. First the testator must have complete trust and confidence in a particular attorney or attorneys to recommend in his will that they be employed as attorneys for the executor. The executor must then re-confirm this confidence, recognizing the skill and competence of the attorney and his firm, by placing the handling of such an important item of business with such attorneys. Following this important stage of the work, Judge Neel individually performed four of the nine agreed necessary items for the probate of a typical estate. Of the remaining five items to be performed after Judge Neel’s death, some were done solely by the executor bank, some were performed by the executor bank with the aid and assistance of the testator’s accounting firm and some by Seaman individually and some by Seaman with the help of the accounting firm. There was no attempt by Seaman to account for the importance of the work performed by others or value the work performed by himself. Although there was testimony that Seaman’s law firm had performed approximately 500 hours of work in connection with the estate, the evidence was that most of this work was in the nature of extra services that would not necessarily be included as a part of a minimum fee. These were services in connection with a settlement of a will contest, ancillary administration, and other related matters. If you considered the 500 hours performed were routine then at a *436minimum fee of $30.00 per hour, this would amount to only $15,000.00 and would leave unaccounted some $61,000.00 ($76,000.00 minimum, less $15,000.00) as a minimum fee for the handling of the routine matters in connection with the probate of the estate.
The legal work in connection with the Harvey estate was to be continued on after the initial probate in representing the perpetual trust. The initial employment included employment thereafter by Seaman as attorney for the perpetual trust. Although this evidence was not to be taken into account directly in figuring the amount of fee due Mrs. Neel as her husband’s share during the time that he lived, it was relevant in consideration of the importance in securing the initial item of business and the prompt work performed by Judge Neel in getting the will admitted to probate, prior to his death.
Other evidence showed that Seaman’s prior firm (Neel and Seaman) had received a fee of $55,000.00 for the handling of an estate of less than one-fifth the size of the Harvey estate. Although the appellant stated that this fee also included some extra work performed by the firm prior to the handling of the estate, Seaman was uncertain as to how much this amounted to and did not attempt to clarify it later.
As to the value of the services that were rendered by Judge Neel and appellant Seaman to the Harvey estate between the time of Harvey’s death and the death of Judge Neel, testimony was received valuing these services from $400.00 upwards to $38,000.-00. The jury found from the evidence that the reasonable value of such services for this period of time was $36,500.00. The jury further found that an equitable division of this amount, taking into consideration the amount of work theretofore • done as to the amount of work to be done, would be sixty percent for Mrs. Neel (i. e. $21,900.00) leaving $14,600.00 for Seaman during this same period of time. Of course, the jury was authorized to consider the fact that Seaman would be permitted to collect an additional amount of approximately $40,000.00, plus such reasonable charges for the extra work performed in connection with the estate for work done after Judge Neel’s death.
We have carefully considered the question of excessiveness and have determined from the entire record and in the exercise of our judicial judgment and discretion that the verdict was not excessive so that this Court would be justified in disturbing the jury’s findings. Dallas Ry. & Terminal Co. v. Farnsworth, supra; Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App. — 1928, opinion adopted). Following the guidelines announced by our Supreme Court, we hold that the amount found by the jury was reasonable. Appellant’s first point of error is overruled.
Appellant’s second point is that a money judgment should not have been rendered against Seaman because it is based on jury findings of the value of legal services rendered for the executor bank and the fee for such services had not been agreed upon or paid by the executor and the executor is not bound by the verdict and judgment. This point is without merit. On the first appeal of this case (Seaman v. Neel, 461 S.W.2d 659, Tex.Civ.App. —Corpus Christi 1970, reversed 466 S.W.2d 278, Tex.Sup.1971) appellant sought reversal of the trial court’s judgment, primarily contending that the executor bank was an indispensable party because it had a joint interest in the controversy and therefore a money judgment should not be rendered against Seaman individually. The argument here is essentially the same argument that was presented in the prior appeal. The Supreme Court held in reversing this Court on the first appeal, that:
“ . . . The Bank as independent executor does not have a ‘joint interest’ in the settlement of the controversy between petitioner and respondent, and a judgment in this case would not be res judicata of a subsequent suit against the *437Bank for the recovery of legal fees incurred in connection with the administration of the estate of J. H. Harvey, deceased. . . . ” Neel v. Seaman, 466 S.W,2d 268 (Tex.Sup.1971).
The written agreement between Judge Neel and Seaman required Seaman to share the fee with Mrs. Neel in her representative capacity, on an equitable basis, considering the amount of work performed and the work thereafter to be done. This he refused to do, which gave rise to Mrs. Neel’s cause of action. This suit has always been a suit by Mrs. Neel against Attorney Seaman for the share of the attorney fees due her husband’s estate in connection with the representation of the executor bank. It was Attorney Seaman who chose not to make the Bank a party to the suit. The undisputed evidence shows the Bank is looking only to Seaman as its attorney and will continue to look to Seaman in the future, regardless of his partnership affiliation. It was through the efforts of Seaman that Seaman had already collected $30,000.00 from the executor bank. This was a sufficient amount to have paid Mrs. Neel the amount found to be due her by the jury. Seaman testified that he expects to charge an additional $30,000.00. He originally offered to give Mrs. Neel only $5,000.00 of the amount he collected. He has never suggested that she is not entitled to some percentage of the fee. In fact he admits in his brief that special issue number 2 was proper. It stated:
“What do you find from a preponderance of the evidence to be an equitable division of fees for work done on the J. H. Harvey Estate prior to January 29, 1965, taking into consideration the amount of work theretofore done and as to the amount of work thereafter to be done?
“Answer by stating a percentage.
“Answer: Plaintiff 60 per cent.
“Answer: Defendant 40 per cent.”
He now suggests that Mrs. Neel’s fair share of the total fee should be approximately $6,000.00.
Seaman was in control of and will eventually dictate the amount he will finally charge the independent executor. The jury verdict only set the reasonable amount that should be charged for the interim term in which Mrs. Neel was interested. The Bank had no interest as a divisor of the fee between the parties. It was and is obligated to pay a reasonable fee. It has agreed to do so. Seaman stated that he would charge a reasonable fee. We believe that he will do this. Since it is undisputed that the Bank will pay a reasonable fee, and, since the jury found from the evidence that the amount owed by Seaman to Mrs. Neel was a portion of such a reasonable fee, we see no basis for reversal. This point of error is also overruled.
Appellant’s third point complains of the trial court in permitting the filing of a trial amendment after both parties had rested and the evidence had been completed. The case went to trial on Mrs. Neel’s fourth amended petition. It alleged that she was entitled to recover because of a partnership that existed between Judge Neel and Attorney Seaman and that certain provisions of the Texas Uniform Partnership Act had been violated. Alternatively, she sought her share of the fee of the Harvey estate based as a result of the joint venture between Judge Neel and Attorney Seaman in their firm. Additionally, she sought and again in the alternative, that Seaman had breached the letter agreement which entitled her to damages; finally, she pled that she was entitled to recover from Seaman a fair fee of the fee of the Harvey estate as a result of the association between her husband, Judge Neel, and Attorney Seaman.
One of the witnesses for Mrs. Neel was Attorney Richard Stone. His testimony in part was based upon the hypothetical question. Attorney Stone stated that the reasonable value of the services for the work performed until the time of the death of *438the lawyer involved would be $38,000.00. No complaint is made of this hypothetical question on appeal. Each item of work performed by Judge Neel was detailed in the hypothetical question. There was evidence admitted during the trial without objection as to each item. The trial amendment listed all of the same items of work performed by Judge Neel. The trial amendment then alleged that apart and aside from any agreement that may have existed between C. B. Neel and the defendant John Seaman, C. B. Neel, from the period of Dr. Harvey’s death on January 8 until the time of C. B. Neel’s death on January 29, 1965, rendered legal services to the J. H. Harvey estate and that a reasonable fee in and around Nueces County for such services was in the amount of $38,000.00. Plaintiff then prayed for judgment of this amount in addition to the other damages alleged in this petition. The trial court refused the plaintiff any other issues relative to the additional damages or relative to any other theory of the case.
Appellant argues that by inferences the trial amendment asked for judgment against Mr. Seaman for the fee for services performed by Judge Neel prior to his death, plus 60% of the entire fee of the entire administration. The special issues submitted by the trial court settled this argument.
A review of the entire pleadings and all of the evidence upon which the case was tried indicates to us that the trial amendment was proper. It is universally recognized that Rule 66, T.R.C.P., expressly authorizes trial amendments. The law vests in the trial court judicial discretion with regard to the filing of trial amendments. The court’s order permitting a trial amendment will not be disturbed on appeal unless an abuse of discretion clearly appears. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948); Cox v. Piwonka, 257 S.W.2d 955 (Tex.Civ.App.— Galveston 1953, err. dism.); Texas Employers Ins. Ass’n v. Sanders, 265 S.W.2d 219 (Tex.Civ.App. — Texarkana 1954, wr. ref’d n. r. e.); Kolacny v. Pelech, 201 S.W.2d 257 (Tex.Civ.App. — Galveston 1947); Keelin v. Hamilton, 430 S.W.2d 268 (Tex.Civ.App. — Dallas 1968) and authorities therein cited. See particularly Rose v. Shearrer, 431 S.W.2d 939 (Tex.Civ.App.— San Antonio 1968) and Rule 67, T.R.C.P.
The appellant has not in any way demonstrated to us how the trial amendment caused or probably caused rendition of an improper judgment, (Rule 434, T.R.C.P.) or that the trial judge abused his discretion in permitting the filing of the same. (Rules 66 and 67, T.R.C.P.). Appellant’s third point is overruled.
The appellant’s fourth point complains of the ruling of the trial court in overruling his plea in abatement to the effect that the law firm of Keys, Russell, Watson & Seaman should have been made parties to this suit. This point has been decided adversely to the appellant by this court in the original and dissenting opinions during the first appeal. The law partnership was not a party to the contract between Neel and Seaman. Appellant’s relationship to the law firm came about as an effort of his own doing. The association commenced after Judge Neel’s death. The plaintiff did not seek recovery against the law firm and the defendant made no effort to make them a party. The present law firm is in no way bound by the present judgment. A defendant may not complain on appeal of the non-joinder of a proper party when he could have impleaded the party himself. Jasper & E. Ry. Co. v. Peek, 102 S.W. 776 (Tex.Civ.App.1907, err. ref’d).
The judgment of the trial court is affirmed.