O'Neill v. Donnell , 9 Ala. 734 ( 1846 )

GOLDTH WAITE, J.

This case falls within the principles ascertained by the recent decision in Willis v. Willis’ Adm’r, ante, 721, and as the proceedings of the Orphans’ Court on this particular issue cannot be revised in this mode, the Writ of error will be dismissed. But because the decision of the questions argued, may be important to prevent further litigation between these parties, as well as to save them expense, we shall announce our conclusions upon them.

And first, with reference to the allowance for counsel fees, in the action of trespass, for seizing the goods of which the administrator’s intestate was possessed in his life time. It is obvious administrators may sometimes, as well as other trustees, be mistaken about property supposed to belong to 'their intestate, and the right of recaption extends as well to them as to other owners; it would be most unconscionable to assert they should stand by and see the property of the estate carried away, without an eifort to prevent it. On the other hand it is equally unreasonable a trustee of any kind shall be permitted to squander the assets in his charge, in vexatious, or even contentious litigation. The difficulty is, to ascertain any general rule, which can govern the whole subject matter; and perhaps it is safer that each allowance should stand or fall by its own merits, than to rest on any general principle. It is evident, however, there is one fact which must exist in every case, to warrant.the allowance of costs, outside of the administration. This is the bona fides of the act by which the costs are incurred. This seems to have been the conclusion in Morris v. Murgatroyd, 1 John. Chan. 473, where Chancellor Kent felt the difficulty, but allowed the charge. So in the case before us, it is impossible to say the party was justified in the trespass, or that if damages had been recovered, these could be a proper charge, yet we think the counsel fees were properly allowed, because, whether an actor, or a defendant to the suit, the title was necessary to be ascertained; and could not well be so without the employment of counsel.

2. With respect to the other claims, we are not prepared to say the Orphans’ Court is restricted in the allowance of specific charges for services rendered the estate. Such charges are perhaps the exception, and not the rule. Whenever they are brought forward, it is doubtless the duty of the court to scrutinize them with a jealous and watchful eye, and they never should be allowed for the ordinary duties of an administrator. If by this means their compensation is to be increased, there is no foreseeing the evils which may be introduced. We shall have occasion in another case, to give our opinion upon allowances for extraordinary services, and in the mean time shall only say, that services in taking inventories, selling the goods, or keeping accounts, &c. are not proper to be so considered.

Writ of error dismissed.