¶1(dissenting).
¶2The majority opinion avoids a harsh result to the widow under the present fact situation, but it establishes a precedent which, I fear, will bring about far reaching and dangerous results and overturns a settled principle of law. I therefore must respectfully dissent.
¶3The majority base their holding in this case on what must be conceded to be a strained construction in pari materia of Section 63, Title 46, Code 1940, and Section 59, Title 61, Code, in order to tax the attorneys’ fees of the Executor in the will contest case against the contestants.
¶4Section 59, Title 61, supra, provides that "The costs of any contest under the provisions of this article must be paid by the party contesting, if he fails … There is no reference in the statute to attorneys’ fees being included in costs. To endeavor to reach their desired result, the majority finds it necessary to engraft to said Section 59, Title 61, supra, a section from the Code which appears in a different title, i. e., Section 63, Title 46, supra, which provides, inter alia:
“In all suits and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, … the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust, … or any party in the suit or proceeding, and is authorized to tax as a part of. the costs in such suit or proceeding such reasonable attorney’s fee. …’’
¶5Even then these statutes fail to properly intermesh, so it is necessary to resort to case law to find authority for the proposition that the administration of an estate is the administration of a trust, thereby finally establishing what the majority concludes is ample authority for its holding. See Keith & Wilkinson v. Forsythe, 227 Ala. 555, 151 So. 60.
¶6There is the principle of law that in the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys’ fees paid by the opposing side. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935, 937; Penney v. Pritchard & McCall, 255 Ala. 13, 49 So.2d 782; Pappas v. City of Eufaula, 282 Ala. 242, 210 So.2d 802.
¶7Where authority for taxing attorneys’ fees against the opposing party is allowed by statute, it is considered that such statutory authority is in derogation of the common law and in order for such fees to be allowed the case must be strictly within the statute and its provisions must be complied with in every respect. See 20 C.J.S. Costs § 218, pp. 455, 458, and cases cited thereunder. A statute in derogation of the common law will not be presumed to alter it further than is expressly declared. Cook v. Meyer Bros., 73 Ala. 580; Pappas v. City of Eufaula, supra. A statute which is in derogation of the common law must be strictly construed and should not be extended further than is required by the letter of the statute. Foster v. Martin, 286 Ala. 709, 246 So.2d 435 (decided by this Court on March 25, 1971). This common law mandate can hardly be followed through a strained construction engrafting one statute to another statute which still lacks any degree of cohesiveness until case law is used to glue them together.
¶8The interwoven construction of Section 63, Title 46, supra, with Section 59, Title *5061, supra, will mean that in every case in which attorneys’ fees for the proponent of a will are allowed as part of the court costs in a will contest case (under Section 63, Title 46, supra) then it is mandatory that the contestant pay the same if the contestant fails in the will contest because of the language “must be paid” contained in Section 59 of Title 61, supra. Such merged construction of these statutes could mean that a losing contestant would have to pay his own attorneys’ fees, the attorneys’ fees of the proponent and face the real possibility in an equity will contest case of the imposition of attorneys’ fees for multiple other parties for the language of Section 63, Title 46, supra, allows the court to assess attorneys’ fees for any party in the proceedings. Section 65, Title 61, Code 1940 (one of the equity will contest statutes), requires that in such proceedings all parties interested in the probate of the will, such as devisees, legatees, heirs, distributees or next of kin, must be made parties to the proceedings.
¶9The language of the majority opinion allows lower court judges to tax attorneys’ fees as part of the court costs in all will contest cases, regardless of whether the contest originates in probate or equity. The only limitation upon the discretion of the judge will be the prospect of an appellate court reversing his action because of an abuse of discretion. That limiting prospect must hurdle the presumption in favor of such judge’s action.
¶10The intermeshing of these two statutes could have the effect of removing will contests from the rule of law as a practical matter. It would indeed be rare to find an informed individual who is willing to contest a will, regardless of how meritorious his grounds of contest might be, in view of the risk of the imposition of attorneys’ fees for one or more of the opposing parties.
¶11Alabama has been proud of the fact that we have low court costs in civil litigation. Inexpensive court costs allow every man to have his day in court and his disputes settled by the rule of law. However, such a strained linking construction of these statutes will mean that only the rich or the clairvoyant can run the risk of contesting a will.
¶12I would affirm the action of the trial court in charging the attorneys’ fees of $14,000.00 awarded the attorneys for the Executor in the will contest case to the residuary estate in accordance with the settled law of this state. Powell v. Labry, 210 Ala. 248, 97 So. 707.
¶13COLEMAN, J., concurs.