
    Maria LUNGU, Appellant, v. Mallory HORTON and Samuel J. Hannon, Appellees.
    No. 73-1202.
    District Court of Appeal of Florida, Third District.
    June 26, 1974.
    Rehearing Denied July 18, 1974.
    Robert S. Korschun, Miami, for appellant.
    Horton & Perse, Samuel Hannon, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and CARROLL, JJ.
   PER CURIAM.

Subsequent to the rendition of this court’s opinion in In re Estate of Lunga, Fla.App.1973, 271 So.2d 80S, cert. denied, Fla., 277 So.2d 786, the matter reoccurred before the probate judge upon a final report of the administrator, a petition for administrator’s fees, a petition for fees to counsel for the administrator, and a petition by attorneys Hannon and Horton for fees. Orders were entered and the executrix has appealed the order awarding administrator’s fees, the order awarding fees to counsel for the administrator, and the awarding of fees to attorneys Hannon and Horton. The latter order is the only one we are concerned with in this appeal. The administrator’s fees and his counsel fees were the subject matter of an appeal lately pending in this court, which resulted in an order of affirmance. See: Lunga v. Kruglak, Fla.App.1974, 298 So.2d 420.

The factual background giving rise to the instant litigation is outlined in Lungu v. Walters, Fla.App.1967, 198 So.2d 99; see also In re Estate of Lunga, supra. Prior to the discovery of the will, the probate of which was sustained in the last cited opinion, Maria Lungu entered into a contract on June 23, 1966 with Attorney Samuel Hannon to pay him 40% of the gross proceeds of recovery in representing her in any claims against the estate of her late grandfather. As the estate was coming to a conclusion in the probate court, Hannon and Horton filed a petition for approval of awarding of attorneys’ fees under the contract, and detailed their services in some nine different proceedings pending in the circuit court, the probate court of Dade County, the Third District Court of Appeal, and the Supreme Court of Florida. Following a review of that petition and a responsive pleading, the trial court entered the order under review finding that the attorneys were entitled to 40% of the proceeds of the gross estate and entered a charging lien for that amount against the estate.

The executrix has appealed and urges error in the order on attorneys’ fees. We find merit in this contention. The contract was for 40% of any recovery that Hannon made on claims against the estate. Apparently these claims are still validly pending and, upon recovery being made, they will be entitled to 40% of the gross proceeds of any such recovery under the contract. Osius v. Hastings, Fla.App.1957, 97 So.2d 623; 610 Lincoln Road Inc., d/b/a A. Taylor & Sons v. Kelner, Fla.App.1974, 289 So.2d 12. As to services that they rendered to Maria Lungu in connection with the probate estate, they will be entitled to receive from the estate fees for such ordinary and extraordinary services as may be fixed by the probate judge, upon appropriate petition and proceedings thereunder. Because Maria Lungu has now ended up the sole legatee of her late grandfather’s estate, she may not want to diligently pursue her claims against the estate; but she cannot frustrate her counsel’s right to fees in accordance with their written contingency agreement because of the fortuitous change in circumstances by the discovery of the will. And, as indicated above, she of course is responsible to her counsel for sustaining the probate of the will, both in the trial court and through appellate review.

Therefore, the order hereunder review be and the same is hereby reversed, with directions to permit counsel to seek their fees by pursuing the original claims of Maria Lungu against the estate or by such other proceedings as they may deem appropriate to establish the fees recoverable under the contract dated June 23, 1966, and without prejudice to the appellees’ filing appropriate petitions before the probate court to fix their fees in connection with sustaining the probate of the last will and testament of the late Alek G. Lunga.

Reversed and remanded, with directions.

CARROLL, Judge

(concurring in part and dissenting in part).

I concur in the judgment of reversal. The order appealed from was clearly erroneous. The contingent fee contract, made in 1966, was for enforcement in the circuit court of two claims which the appellant had filed against the estate of the decedent and which had been rejected by the personal representative. It had no reference to what the appellant might receive as a beneficiary of a will, the existence of which was not known at the time of the contingent fee contract.

However, I am unable to agree with the portion of the majority opinion whereby the court prejudged the right of the attorneys to proceed with action on the appellant’s claims (commenced seven or eight years ago under the 1966 contract, and not yet progressed to trial), and to be entitled to receive the contingent fee upon obtaining judgment thereon, regardless of the desires of the appellant as to whether the prosecution of the claims action should be resumed and completed, in the present situation.

My reasons therefor are, first, that such holding by this court amounts to a declaratory judgment on a question or questions not involved on this appeal, and which were not pleaded, tried and determined in the trial court. Secondly, in view of the subsequent discovery and probate of a will under which the appellant (creditor) is the sole beneficiary, questions may be raised by or on behalf of the beneficiary as to whether the pending action for recovery of her claims is moot, or otherwise need not be prosecuted (through no fault of hers, and because unnecessary due to the will, and no longer an adversary proceeding).

Such questions which could have some bearing on the contingent fee contract, with reference to the further prosecution of an action on the beneficiary’s claims against her estate, regardless of the merits thereof, should have been left for future determination by a trial court in an appropriate proceeding relating thereto, rather than be foreclosed by the opinion in this case, prematurely, in favor of one party or the other. 
      
      . An interest in this contract was subsequently assigned or acquired by the appellee, Horton.
     