39 Ala. 709 | Ala. | 1866
An executor fills “a fiduciary relation, which is indispensable in our judicial system; and, in the absence of bad faith, the law does not visit Mm with severer intendments than are indulged against agents generally.” — Henderson v. Simmons, 33 Ala. 291. An executor who institutes a suit in good faith, and on reasonable grounds, is entitled to reimbursement of the costs and expenses of the litigation, notwithstanding his failure of success; provided there does not appear to have been a want of proper diligence.—Taylor v. Kilgore, 33 Ala. 214; Pearson v. Darrington, 32 Ala. 261. Upon this principle, the appellant should have been allowed the costs and expenses incurred in the suit of detinue brought by him against Mary T. Sims. The negro which was the subject of litigation, had been bought and paid for by the appellant’s testator, and remained in his possession, without any established intermission, until his death, and was spoken of and treated by him
There seems to have' been included among tbe credits claimed for expenses incurred in this suit, an item for extraordinary services. We can not ascertain from tbe bib of exceptions what those services were, or what proof was made in reference to them. Therefore, we can not decide whether or not this item of credit claimed ought to have been allowed.
If there are any questions presented by the record, which we have not noticed, the principles which we have announced will probably be a sufficient guide to the probate judge in determining them.
Beversed and remanded.