Fickle v. Scampmorte , 243 Ind. 165 ( 1962 )

Concurring Opinion

Achor, J.

— In addition to the reasons stated in the majority opinion for the affirmance of the judgment of the trial court, consideration should be given to the fact that the so-called “contingency fee contract” merely stipulated the attorney fees that the attorney who executed the contract should receive from ap-pellees in event he was successful in probating a particular will. The contract did not negative the attorney’s right to recover a fee for his services from the estate when, as in this case, he was not successful in probating the particular will which action necessitated resisting the probate of a different will which was allowed to prevail. In the absence of such a prohibition in the contract, there was nothing under the facts presented to prevent the allowance of a fee for appellees’ attorney who was not otherwise paid, as contemplated by the Probate Code [Acts 1953, ch. 112, §1014, p. 295 (§7-414, Burns’ 1953 Repl.)].