Alexander v. Bates, 127 Ala. 328

Alexander v. Bates

127 Ala. 328 | Ala. | 1899

■SHARPE, J.

Upon a former appeal the will involved in this cause was set out at length in the report of the decision wherein it was in part construed. — See Bromberg v. Bates, 112 Ala. 362. Since that appeal the appellee executor has made two settlements in the chancery court. This appeal is from the decree rendered upon the last settlement. The decree subjects three Alabama bonds left bv the testatrix to the payment of her funeral expenses and of certain costs and expenses of administration. The appellant, Alexander, claim's these bonds as a legatee and the only question pressed for decision *340upon Ms appeal is whether the bonds may properly be so subjected.

Some parol proof is found in the record of declarations made by the testatrix touching the disposition of her Alabama bonds, but it is of no value in construing the will. Parol proof may be admitted when necessary and useful to disclose the circumstances surrounding the testator, the situation of his property, and of the persons who are affected by the will, so as better to enable the court to learn the testator’s intention and thereby to arrive at the meaning of provisions otherwise obscure, 3ret the instrument must be construed according to the 'writing itself, illustrated it may be by a'view of the situation, but without recourse to oral declarations of meaning or intention.

The only provisions of the will which relate to the debts, expenses and bonds in question are contained in the first and fourth items which are as follows: “Item first. It is my will that all my just debts, funeral expenses and expenses of administration be paid out of my personal estate. * ¶ * * Item fourth. I give and bequeath to said Henry Alexander whatever Alabama bonds I may have remaining at the time of my death, now amounting to seven in number, of one thousand dollars each, and not used by my executor in the payment of my debts, funeral expenses and expenses of administration.” Bequests absolute in terms are made to various persons and certain property is mentioned as undisposed of over which power of disposition is reserved to be made by codicil. No codicil was made and of the undisposed of property besides real estate, personal property remained amply sufficient to pay the debts and expenses and from its proceeds the executor has paid most of the debts and expenses.

■ It is plain that the will does not expressly charge the bonds, and we are of the opinion that its language does not imply that they are to be charged to the exoneration of tli-e undisposed of personalty. The words “and not used by my executor in the payment of debts,” etc. are not equivalent to a direction to the executor to use the bonds and they seem to imply no more than a mere *341authority to use them either at the executor’s discretion or in ease he should find such use necessary for want of other available personalty. Whether the authority was so discretionary need not he determined since it has not been exercised and since under pur construction of the will the words last quoted were not intended, to qualify the bequest of bonds except upon the contingency of their use by the executor. This is according to the letter of the will which must he the guide to the testatrix’s intention in the absence of a safer one. This construction is assisted by reference to the first' item wherein the personal estate generally is mentioned as the source from which the debts and expenses are to he paid. The statute commits the general personality to the executor’s administration and that the testatrix intended to do so is clear from her expressed intention to dispose of her remaining property by means of a codicil to the same will in which she names the executor. Therefore, it must have been within her contemplation that the executor in obtaining money to make the directed payments Avould not be confined to property included in the Avill.

No bonds having been used by the executor and there being no necessity for their permitted use, the condition exists which by the express terms ' of the will entitles the appellant Alexander to have them undiminished by the charge imposed on them by the decree. Under Alexander’s appeal the 'decree so far as it creates the charge in question Avill he reversed and the cause will he remanded for further proceedings in accordance Avith this opinion.

In the cross-appeal which is by the original complainants, Bates and others, certain assignments of error are made by the cross appellants on the decree of January 16th, 1896, AAdiich ascertained the amount of money in the hands of the executor and belonging to the testatrix at the time of her -death. That decree was based on a report of the register made pursuant to a reference ordered and held, whereon the parties were represented and evidence Avas taken on both sides of the controversy. Exceptions Avere filed to the findings of the register; and the decree, after disposing of the exceptions, proceeds as folloAvs: “It is, therefore, further -decreed that the total *342amount in the hands of said Bromberg (the executor) at the time of the death of Miss Rouse (the testatrix) was eight thousand dollars, and the report is in this respect corrected. It is further adjudged and decreed that the report as so corrected be, and it is hereby, in all respects, ratified and confirmed.”

The finality of a decree is not determined by the stage of the suit at the time it is rendered, but upon whether it concludes a party in imposing on him a liability or in depriving him of a right.

That decree makes final disposition of the special matter then being litigated and was binding not only upon the executor but upon the cross appellants and it has never been appealed from. Either of the parties might have appealed within the time allowed by law, but that time elapsed prior to the present appeal, which, being from a subsequent and different decree, gives this court no jurisdiction to review the former final decree.

Joinder in error may waive irregularities in the mode of taking an appeal, but it does not dispense with the appeal. — Etowah Min. Co. v. Wills Walley Min. & Mfg. Co., 121 Ala. 672.

Objections were made to the allowance to the executor of commissions, and of certain items of expense incurred by suits on the sole ground that the litigation was improperly entered into and entailed loss upon the heirs. The only evidence to which the chancellor was referred in 'support of these objections was the papers pertaining to the litigation and from them it cannot be seen that the executor acted in the litigation otherwise than from a reasonable regard for the interest of the estate. An executor forfeits his right to compensation only as incident to an unfaithful administration and where he has been guilty of default or gross negligence of which loss to the estate has been the consequence. — Pearson v. Darrington, 32 Ala. 227; Smith v. Kennard’s Extr., 38 Ala. 695; Ivey v. Coleman’s Extr., 42 Ala. 409.

Allowances to the executor for his own services as an attorneys in the will contest were objected to on no other ground than that the services were unnecessary because the contesting heirs and legatees had employed counsel *343to represent them on the contest. To support this objection the chancellor was referred only to the testimony of the executor himself. That shows that some of the legatees were represented by counsel, but that he as executor represented the interests of the estate and incidentally of all beneficiaries under the will. In Henderson v. Simmons, 33 Ala. 291, it is said: “It is -the privilege if not the duty of one named as executor of a paper purporting to be a last will and testament to propound it for probate. If he have no knowledge or reasonable grounds on which to predicate a well grounded suspicion •against the legality of the will and propound the paper in good faith, he but carried out the intention with which he was appointed. Any reasonable costs and expenses incurred by him in the honest endeavor to give effect to the will is a proper charge on the estate in his hands.” We must assume that this executor was acting in good faith since his effort to establish the will-, though resisted, was successful. These allowances to the executor were made by the register on testimony taken before him on a reference, and the presumption is in favor of their correctness.

Those objections to the executor’s credits which were made on the ground that the payments represented by the credits were not charged upon the Alabama bonds are disposed of by what we have said in construing the will.

As to the cross appellants Bates and others the decree Avill be affirmed at their cost.