It has been held that such attorneys' fees cannot be claimed as costs of suit. McClelland v. McClelland (Tex.Civ.App.) 37 S.W. 359. But the rule seems to be well established that where the wife brings or defends a suit for divorce in good faith and upon probable cause, reasonable attorneys' fees incurred by her are properly chargeable against the husband, upon the ground that such fees are necessary for the protection of a right given her by law. McClelland v. McClelland (Tex.Civ.App.) 37 S.W. 350; Ceccato v. Deutschman, 19 Tex. Civ. App. 434, 47 S.W. 739; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S.W. 633; Dodd v. Hein, 26 Tex. Civ. App. 164, 62 S.W. 811; Hicks v. Stewart Templeton, 53 Tex. Civ. App. 401, 118 S.W. 206 (writ refused); Hill v. Hill (Tex.Civ.App.) 125 S.W. 91; Varn v. Varn, 58 Tex. Civ. App. 595, 125 S.W. 639; McLean v. Randall (Tex.Civ.App.) 135 S.W. 1116 (writ refused); Yeager v. Bradley (Tex.Civ.App.) 226 S.W. 1079.
The husband is liable for the fees as for necessaries. McClelland v. McClelland (Tex.Civ.App.) 37 S.W. 358; Ceccato v. Deutschman, 19 Tex. Civ. App. 434, 47 S.W. 739; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S.W. 633. As to the insistence that the counsel fees could be recovered only by the attorneys in whose favor they were incurred, and not by the plaintiff, it was said in Varn v. Varn, 58 Tex. Civ. App. 598, 125 S.W. 640:
(1) When the district court originally obtains power and jurisdiction over all the parties and the subject-matter, it may determine the heirs of a decedent and do all things necessary and proper to ascertain the lawful owners and effect the partition. Cogley v. Welch, Tex.Com.App., 34 S.W.2d 849; McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S.W. 1171. (2) Where there has been no administration in Texas, and when there has been a will probated in Texas or elsewhere, or an administration in this State upon the estate of a decedent, and real or personal property in Texas has been omitted from either the will or the administration; or no final disposition thereof has been made in the administration, an original adjudication of heirship may be sought in the county court under Articles 3590-3597a, Vernon's Ann.Civ.Stats.; Cavanaugh v. Davis, Tex.Sup., 235 S.W.2d 972.
After the debts and expenses of the administration were paid the title to all property remaining vested in them for the purposes of the trust. McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S.W. 1171. As in all cases where the same party is named independent executor in a will and trustee of a testamentary trust, it is difficult to distinguish between what power is intended to be conferred in the capacity of executor and what power as testamentary trustee.
In view of the fact that appellant, who was the independent executrix of said estate, alleged that said estate had been fully administered and that there was no necessity for further administration and prayed for partition of the estate, there was no material error on the part of the trial court in placing the property in the hands of a receiver. 32 Tex.Jur. 194, 195; Dunn v. Vinyard (Tex.Com.App.) 251 S.W. 1043, par. 16; Quintana v. Giraud (Tex.Civ.App.) 209 S.W. 770, par. 5; McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S.W. 1171, 1176; Cogley v. Welch (Tex.Com.App.) 34 S.W.2d 849. In presenting her claim against T. M. Dilworth estate, Mrs. Hake charged said estate with the sum of $2,870 as salary and the sum of $1,775 as expenses incurred by her after the death of T. M. Dilworth in operating an abstract plant alleged to belong to said estate, which abstract plant was sometimes operated under the name of the Waco Abstract Company and sometimes under the name of McLennan County Abstract Company.
Opinion. It is well settled in this state that fees for services rendered the wife by an attorney in a divorce suit are recoverable from the husband in a case where she has reasonable grounds for instituting the suit or for her defense and the suit is either instituted or defended in good faith by her. McClelland v. McClelland (Tex.Civ.App.) 37 S.W. 350; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S.W. 634; Woeltz v. Woeltz (Tex.Civ.App.) 57 S.W. 905; Varn v. Varn, 58 Tex. Civ. App. 595, 125 S.W. 639; McLean v. Randell (Tex.Civ.App.) 135 S.W. 1116; Yeager v. Bradley (Tex.Civ.App.) 226 S.W. 1079; Fasken v. Fasken (Tex.Civ.App.) 260 S.W. 698. The courts seem to adhere to the theory that such fees are recoverable on the ground that they are "necessaries," and it has been held that, if the wife's grounds for divorce are not sufficient, or if the suit is not brought in good faith by her, then the husband would not be liable.
It also seems to be well settled that such fees are allowed on the ground that they are "necessaries." McClelland v. McClelland (Tex.Civ.App.) 37 S.W. 350; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S.W. 634; Woeltz v. Woeltz (Tex.Civ.App.) 57 S.W. 905; Varn v. Varn, 58 Tex. Civ. App. 595, 125 S.W. 639; McLean v. Randell (Tex.Civ.App.) 135 S.W. 1116; Yeager v. Bradley (Tex.Civ.App.) 226 S.W. 1079; Fasken v. Fasken (Tex.Civ.App.) 26O S.W. 698. Our courts have also held that the court may in such cases make the allowance in the action for divorce.
The allowance of an attorney's fee to the wife was also proper. McClelland v. McClelland (Tex. Civ. App.) 37 S.W. 359; Fasken v. Fasken, 260 S.W. 698, recently decided by this court. The objection that there was no evidence of what would constitute a reasonable fee need not arise upon retrial.
Opinion. The will of Peter McClelland, Sr., has been before this court in the following cases: McClelland v. McClelland, 37 S.W. 350; Wood v. McClelland, 53 S.W. 381; McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S.W. 1171; and Lindsey v. Rose, 175 S.W. 829. These cases all involved the construction of the will and codicil, and from first to last this court has uniformly held that the will and codicil of Peter McClelland, Sr., created an active trust, and what is known as a spendthrift trust, and vested the legal title of the property in controversy, together with all its accumulations, in the trustee, during the continuance of the trust, with Peter McClelland, Jr., as sole beneficiary of the trust estate.
Hence the court did not err, as urged by appellant in his second assignment, in telling the jury that if the alleged services were performed by appellee at the request of Harry Snaman, the deceased, the appellant would be liable therefor. See Runnels v. Knownslar, 27 Tex. 532; Houston v. Mayes, 66 Tex. 299, 17 S.W. 729; Patterson v. Allen, 50 Tex. 25; Solomon v. Skinner, 82 Tex. 345, 18 S.W. 698; McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S.W. 1171; Mayes v. Jones, 62 Tex. 365; Kauffman v. Wooters, 79 Tex. 205, 13 S.W. 549; Webster v. Willis, 56 Tex. 468; McCampbell v. Henderson, 50 Tex. 601; Blinn v. McDonald, 92 Tex. 604, 46 S.W. 787, 48 S.W. 571, 50 S.W. 931; Middleton v. Pipkin, 56 S.W. 242. No reversible error being shown, the judgment of the court below is in all things affirmed.