Howard v. Rutherford

43 So. 30 | Ala. | 1907

DOWDELL, J. —

The áppeal in this case is taken from the decree of the probate court on final settlement by the administrator, and is prosecuted by the two distributees of the estate; they .being the only distributees and equally interested in the'estate.

There, .can be no question that the form of the settlement of the account by the administrator was irregular. The statement of account between the administartór and the estate should not have embraced charges against the distributees on their distributive shares. Such charges should have been made and allowed the administrator against the distributive share after ascertainment of the distributive share of each distributee in the. settlement of the estate. — Dickie v. Dickie, 80 Ala. 57. But if, in the statement of account and the calculations made by the court, although irregular in form, the distributees received under the final decree their full distributive shares, and all which they were entitled to receive, as such distributees, no injury resulted, and hence no reversible error was committed.

The court, in its statement of the account, made annual stops and rests, crediting the administrator with current expenses of administration, and charging him with interest at 8 per cent, on the balance from year to year to date of final settlement, although the usual exculpatory .affidavit was made. In this there is nothing of which the appellants can complain. The court in its calculations, in order to ascertain the amount due the distributees on the final settlement, deducted from the share of each distributee the allowances and advancesments made by the administrator to each distributee during the particular year, and charged the administrator with interest on the balance from the stop or rest so made. In this we fail to- see that injury resulted to‘the distributees.

There was no error in crediting the administrator’s account with the state and county taxes paid by him, assessed against the estate.

The evidence on the question of board charged by the .administrator against the distributees was conflicting. The testimony was taken ore tenus. The court had the witnesses before it. The evidence very clearly showed that there was an un-djbrstandSing and agreement between the widow, Mrs. Genella Howard, and the administrator, that the latter would charge the former board, though the amount was not stated. The evidence of the witnesses varied as to Avliat was a reasonable charge. Some placed it as high as $10 to $12 a month, while others placed it as low as $5. From all of the evidence the court fixed $7 a month as a reasonable charge. Some of the witnesses placed it at this amount, and rve are not prepared to differ from the.court in its conclusion. Under sections 227 and 239 of. the Code of 1896, the item of board against the distributees were properly allowed against their distributive shares on the final settlement and distribution by the administrator..

We Lave eaue-fully considered .tbe evidence, -and we aace not- prepared (to say that the .court was wrong in its

conclusions of fact from -the evidence, in the -allowance of certain items of ciedit -tha-t were disputed, and as to which there was a conflict in the .testimony. The items of costs, attorney’s fees, and guardian ad. litem fees were properly apportioned and allowed.

We see no reason for disturbing the decree of .the probate court, and the .same will be here -affirmed . ■

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ.., concur. .