126 Ala. 257 | Ala. | 1899
This suit was brought by appellee, who is a devisee and legatee under the will of Ira R. Foster, deceased, against the executors of the will who are also -devisees and legatees, and also against others alleged to be likewise interested, seeking to remove the administration from the probate into the chancery court and to have the estate -there -settled and distributed. Excepting three who disclaimed all interest, the defendants each by demurrer and answer resisted the bill and the proposed removal of the administration. The demurrers were overruled and on a reference the executors’ accounts for final settlement were stated before the-register, who reported his findings which upon several contested items were against the executors, resulting-in an increase of the fund to be -distributed over that shown by the voluntary statement of accounts. In that report the register stated that it was agreed by counsel “that the chancellor is to re-refer the matter to the register to ascertain and report in Aracation the amount of solicitor’s fees -to be alloAved the complainant and the-executors, and to make and state an account betAveen the executors and the several distributees for the purpose of a distribution of the estate.”
At the fall term, 1898, this report aauis confirmed and it Avas ordered that the register should ascertain and report in vacation among other things Avhat amount, if any, should be allowed to the solicitors of complainant for sendees rendered in the cause. After proof taken upon this reference the register made a report in vacation stating among other matters, the amount -of complainant’s solicitors’ fees, and the record sIioavs that on the same day the cause aauis submitted -for final decree on the bill, the orders of reference and the two report» thereunder, together with a written agreement -of compromise made by counsel in behalf of the respective parties, defining the interest each should have in the'estate-after payment of all debts and the costs and expenses of
On this submission a decree was rendered in vacation, directing distribution according to the terms of the agreement, overruling exceptions to the last report and ordering payment of complainant’s solicitors’ fees out of the general fund in the hands of the executors.
The agreement referred to being incorporated in the submission made in vacation with nothing to indicate that the decree was to be deferred, was in effect a written consent of parties that a decree might be then rendered according to its terms. As such it was a substantial compliance with chancery rule 80, which requires written consent to authorize submissions for decrees in vacation. It was also a waiver of questions raised by demurrers to the bill, and on the part of those defendants who had not answered, it was also a waiver of their ■right to further plead to the bill, for otherwise the decree contemplated by the agreement might have been prewented by defenses substantially interposed. Defendants, however, arfe not precluded- either by the agreement of compromise or by their consent to the order of reference for the ascertainment of complainant’s solicitors’ fees from objecting to the allowance of those fees out of the general estate. Such allowance was not agreed to, and therefore defendants are at liberty to have the decree reviewed so far as it has that effect, .and that feature of the decree appears to be now the main matter of contention.
In charging those fees on the common fund held by the executors the court was in error. In a variety of ■cases where suits brought by some enure to the benefit of others in the production or preservation of a fund in which all are interested, equity will enforce contribution to expense of suit, including counsel fees, among' those participating in its benefits by charging such expenses on the common fund, but we fail to find any con
In Thirlwell’s Admr. v. Campbell, 11 Bush, 168, the Kentucky court of appeals in construing a statute which was depended on as authorizing the general estate to be charged with counsel fees of the complaining distributee, said that “such a construction would .produce results detrimental both to the bar and the general public, for under it the party who would be the first to commence an action would be entitled to have the whole of his counsel fees paid out of the common fund, although he might be the only one who desired suit to be brought or desired the services of the attorney he might employ; * * * * and would open the door to abuses not contemplated by the legislature as within the range of the act.” This language was quoted approvingly by the same court in Dougherty v. Cummings’ Admr., 50 S. W. Rep. 551, and the reasoning is especially appropriate here, where there is no statute on the subject, and to the present spit, which appears to have been prosecuted by the complainant against the wishes of the other distributees, who, so far as the record shows, have made no agreement, express or implied, to contribute to fees of complainant’s solicitors, but who throughout the litigation have been represented by other counsel.
The decree will stand, except that part which directs payment from the funds in the hands of the executors of the sum of six hundred dollars to complainant’s solicitors,- as to which part the decree will be reversed and the cause will be remanded for further proceedings in the chancery court. Appellee will'pay costs of appeal.
Affirmed in part, and in part reversed and remanded.