124 Ala. 311 | Ala. | 1899
— The matter of controversy in this case grows out of the refusal of the court to allow the payment of certain claims to G. D. Noble and Ruth Hooker, two of the appellants; 2nd, the amount of commission allowed by the court to the executors and executrices; 3rd, the disallowance as a credit amounts paid to Gor- . don McDonald, Esq., as attorney’s fees, and 4th, the matter of interest charged against the executors.
It appears that Jesse Hooker died in June or July, 1896, leaving an estate consisting entirely of personal property of the value of about $90,000, leaving a will naming the appellee as residuary legatee and the appellants and Mrs. Jackson executors and executrices of his will which was probated in Montgomery county. The debts of the estate are shown to have been only $1,098,-04; of this amount $905.15 were for expenses incurred in and about” the purchase and improvement of a lot in the cemetery, the purchase of casket, clothing, etc. The remaining indebtedness of $193.89 comprised small bills due and owing by the testator contracted by him. The
The claim of appellant Noble for $600 for services rendered the testator during his lifetime, was attempted to be established by the testimony of Mrs. Hooker, the wife of the testator and one of the executrices. It appears that this claim had been paid by Noble by the executors and executrices and the purpose of the testimony to establish it was to have the court allow them a credit for the amount paid him. The court properly excluded the testimony, for the obvious reason, that Mrs. Hooker, being interested in maintaining the payment which she and the others had made so, as to get a credit for it as against the estate, was an incompetent witness. — Hullet v. Hood, Admr., 109 Ala. 345. There was no proof to support the claim of Mrs. Hooker, and for this reason it was properly disallowed. The refusal of the court to allow Noble his claim for special or extraordinary services is not assigned as error and we cannot consider the action of the court in that regard. But had it been, in the absence of the will of the testator from the record, we would have been compelled to treat the question as pertaining to the administration of the estate in the ordinary mode of administering estatés under the law.
2. The next question presented for consideration is the one involved in the assignment of error based upon the allowance of commissions.
. Compensation or commissions allowed administrators and executors for ordinary services are governed by section 219 of the Code, which reads as follows: “Executors and administrators may be allowed such commissions on all receipts and disbursements by them, as such, as may appear to the probate court a fair compensation for their trouble, risk and responsibility, not to exceed two and one-lialf per cent, on the receipts, and the same percentage on the disbursements; and the court may also allow actual expenses, and, for special or extraordinary services, such compensation as is just.”
Section 220 provides that “upon the appraised value of all personal property, and the amount of money and solvent notes distributed by executors or administra
By the terms of these statutes it is manifest that a discretion as to the amount of commissions is lodged in courts charged with their allowance and that but two limitations upon the exercise of this discretion are im: posed: the allowance must be a fair compensation for the trouble, risk and responsibility of the executor or administrator, and it must in no case exceed two and one half per cent, on receipts, disbursements, personal property appraised, and notes and money distributed. The statute is equivalent to a legislative declaration that a fair compensation for the ordinary duties and responsibilities of an executorship cannot exceed the two and one-half per cent, which the court is authorized to allow, or, in other words, that no case can arise in which that maximum ivould not furnish sufficient coni' pensation. Being thus sufficient in the most extreme cases, its allowance in many instances would afford more than that fair compensation contemplated and provided for by the law-makers. This, in our opinion, is such a case. The estate here being administered was, at the death, of the testator, it is true, quite a large one, amounting to something like $90,000. It consisted, as we have. heretofore stated, of money, mortgages and other readily convertible securities. The executors were charged with the duty of collecting up the assets, paying the debts of the testator and distributing the residue to the legatee, under , the will. It is clear to our minds that the full statutory commission on receipts and disbursements — that is, two and one-half per cent, on $180,000 — would be excessive; their services in performing those duties in respect to this estate would not be worth nearly so much as four thousand five hundred dollars. Since the case must be reversed upon another point, we will not forestall the probate judge’s discretion in fixing the amount upon another hearing.
3. One of the contentions here as against the allowance of a credit of $1,542.50 paid Gordon McDonald. Esq., for services rendered as attorney, is that no item ized claim was presented showing the items comprising the account and the value, of each item. In other words,
TTe do not understand the rule to be, that executors are alloAA'ed an allowance for counsel fees paid by them, only when they are successful in the prosecution of suits brought by them or in the defence of suits brought against them. Such a rule would make them, in a measure, at. least, to the extent of the expense'incurred by them in the prosecution or defense of all suits to which they are parties, insurers. The rule, as AATe understand it, is, that an executor who institutes a suit in good faith and oh 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. Holman v. Sims, 39 Ala. 710. In Taylor v. Kilgore, 33 Ala. 214, it is said: “In the institution of the suit in South Carolina, the guardian had no conceiArable motive or interest to induce him to act mala Jicle. In the institution of the suit, he acted under the advice of counsel learned in the law, and of unquestioned integrity, avIio appears to have been fully informed of all facts, pertaining to the case, which Avere known to the complainant. There is, therefore, no just reason for the imputation of bad faith.”
The testimony slnrws services rendered by McDonald for the executors in a proceeding instituted by this ap- . pellee to require them to give a bond as such which resulted in a judgment for them. Enough is shown in the
Without further consideration in detail of the items
4. The remaining question to he considered grows out of the various charges of interest decreed by the court against the appellants upon certain items. And it is for an error clearly committed by the court in this respect that the case must be reversed. One of the. charges against the appellants ivas of interest on $2,400 paid to them as commission under the agreement of October 3,1896. It appears from the recitals in this agreement that all the special legacies had been paid and the remainder of the estate, amounting to about $20,000, was to be paid to this appellee upon a final settlement of the estate. One of the terms of the agreement was to authorize the executors to pay themselves this sum of $2,400 as commission, subject however to their right to have the amount increased by the court or reduced by the appellee. The court reduced the amount of the commissions to $1,800 — $600 less than the sum authorized to be paid under the agreement.
It is doubtless true that in the absence of this agreement, the commissions were not payable until ascertained by the court, but we know of no rule of law or policy which prohibits parties sni juris from making this contract. The payment being made under it and authorized by it, the executors were not chargeable with interest thereon. The use of the money, being by the ex> press consent of the sole party interested in the estate, was not in violation of their duties as trustees and constituted no breach of trust by them. As to whether they should pay interest on the $600 and $194.71 paid to Noble, the $171 paid Mrs. Hooker, and the amount paid as counsel fees, depends of course upon their allowance as credits against the estate.
The court below, and it is complained of here, charged the executors with interest upon all money in their hands, whether used by them or not, from the 1st day of March to the date of the settlement. The theory upon which this charge was made against them was, that they should have made a final settlement of the estate at the
We are of the opinion, therefore, that the executors were properly chargeable with interest upon all money unproductive in their hands, less the amount which the3r would have been allowed to retain had they made a partial settlement of the estate on the 1st day of March, and the cost and expenses attendant upon the making of the final settlement. It appears that the court in charging interest did not calculate it upon the amount in the manner pointed out above, but upon the gross sum of money in their hands, unproductive.
The decree in the cause seems to have been rendered only against three of the executors, not including the executrix, Mrs. Jackson. She appears to have been before the court and to have received six. hundred dollars of the amount paid as commissions under the agreement of October 3, 1896. And for aught that appears in the record was chargeable with all sums charged by the court against the other three.
We confess to having had great difficulty in arriving at a correct conclusion in the case owing to proper matters being omitted from the record, such as the account filed by the executors, vouchers, etc.
For the errors pointed out the decree will be reversed and the cause remanded.
Reversed and remanded.