Abercrombie v. Skinner,

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Notebook

| Ala. | Jun 15, 1868

BYRD, J.

I. The evidence in this cause authorized the probate court to charge the administrator with the share to which the estate of Skinner was entitled of the money collected by the attorney. If an attorney collects money for a trustee, and he permits it to remain in the hands of the former for so long a time as was done in this case without any effort to collect it, the court should charge him with it. — Lomax's Ex'r., marg. pages 291 and 292.

H. As to the note taken in part payment of the judgment, it is not clear from the evidence that it has been collected, or that the administrator has made himself liable to be charged with the amount thereof. — Douthit's Adm'r v. Douthit, 1 Ala. 597 ; Duffee, Adm'r, v. Buchanan and Wife, 8 ib. 31; Wilkinson v. Hunter, 37 ib. 268.

*636III. 'We do not think that the fact that the money or note was received in satisfaction of a compromise of the judgment, can, under the evidence, vary the liability of the administrator. Unless there is some express stipulation to the contrary, money paid on a compromise is a payment pro tanto upon the debt, and a failure to carry out the compromise by the party making the payment does not give him any claim or right to have the money paid refunded. The agreement shown by the evidence conferred no such right, on a failure to pay the amount agreed on compromise to be paid.

IY. An administrator who permits an attorney, whether under an agreement or not, to retain funds collected on a judgment in payment of fees, is chargeable therewith, and should discharge himself by a receipt of the attorney, or in some other mode. If he fails to charge himself with the money, and does not credit himself with the amount of the fee, the proper way for the distributees to reach the question of the reasonableness of the fee, is to make a motion to charge the administrator with the money, and the court should do so ; and upon the voucher for the fee so paid, the distributees can make up an issue to test its correctness, and the court should allow so much of it as the evidence sustains. — Revised Code, §§ 3137, 2147, 2160.

The decree must be reversed and cause remanded.