Green v. Distributees of Fagan , 15 Ala. 335 ( 1849 )

COLLIER, C. J.

An administrator is bound to defend the estate of his intestate against claims which he believes to be unjust; and if, under an honest impression that a demand is not a proper charge, he employs counsel, he is entitled to charge a reasonable fee against the estate. Davis v. Rawlins, 2 Harring. Rep. 125. Although he is unsuccessful in the suit, yet if he litigated the question of liability in good faith, he shall be reimbursed his costs from the assets of his intestate. Bettis v. Taylor, 8 Port. Rep. 564.

It is fairly inferable from the record before us, that the administrator was entirely justifiable in his refusal to pay the claim of Riggs. The widow, and perhaps some of the dis-. tributees, advised him not to pay it, expressing the belief that it was unjust, that they had never heard of it, &c. This admonition, in the absence of all knowledge on the part of the administrator, as may be fairly intended, was quite, enough to have authorized him, as a prudent man, to require Riggs to establish his claim by suit. In making defence against this demand, it does not appear that he incurred any unnecessary expense, and the orphans’ court should have made the proper allowance. Instead, however, of doing this, the charge for costs was wholly rejected.

In respect to the judgment in favor of Rainey, administrator, Sfc. there can be no question, that if the grant of administration to Rainey upon the estate of William Fagan, sr. was void, as seems to have been held by this court in Treadwell v. Rainey, 9 Ala. Rep. 590, no title in the slave (the consideration of the note upon which the judgment was founded) passed to the intestate of the plaintiff, beyond the life estate of the widow of the elder Fagan. This being the case, it was the duty of the administrator to have defended, and to have enabled him to do so, he should have acquired a knowledge, or at least endeavored to obtain the necessary information previous to the rendition of the judgment. Although it may be that he will make a successful resistance to the recovery of the judgment now pending in chancery, yet the estate should not be charged with the additional counsel fees and costs resulting from the protracted litigation subsequent to the judgment against him in his representative character. These charges are but the consequences of his inattention and neglect.

The record does not discover that the slave referred to, ever went into the hands of the administrator, and has been sold by him as a part of his intestate’s estate, or that he is in any manner liable to account for it to the true owner. We cannot therefore assume, that he should be allowed to retain from the estate for his indemnity. Besides, if we are permitted to refer to the facts of the case in 9 Alabama, which we understand to be adopted as if part of the record, it may be asked if it does not appear, that the widow of Rainey’s intestate, who had a life estate in the slave at the time of the sale, did not estop herself from asserting her title ; and if she was living when the slave was sold by the plaintiff in error, could he be charged for a conversion ? Lewis v. Mobley, 4 Dev. & Bat. R. 323; Caldeleugh v. Hollingsworth, 8 Watts & Serg. Rep. 302; Poag v. Carroll, Dudley’s Rep. (S. C.) 1.

But it is needless to consider these suggestions, as in the condition of the record before us, we eannot say that the administrator is entitled to a credit for a greater sum than the judgment first recovered against him, and this, it seems, has been allowed.

As for the $ 100 which were paid by the intestate in part satisfaction of the debt on which the judgment was rendered, it seems that the administrator was aware of the payment, and allowed Rainey to take his judgment for the full amount of the debt, upon the promise that that sum should be credited. The credit has not been-formally entered, but the administrator holds a receipt acknowledging it, and this is quite sufficient. But if it were otherwise, the distributees cannot be prejudiced by the failure of the administrator to avail himself of the payment previous to the rendition of the judgment.

We cannot say, from any thing shown to us, that the charges and allowances for interest are incorrect; but as the case must be sent back, we would merely remark, that attention to our numerous decisions must lead to a correct conclusion, should there be further controversy upon this question.

The motion to dismiss the petition for a distribution, because the widow was unwilling to prosecute it, was rightly denied — it was altogether competent for the other distributees to proceed for their own interests.

In respect to the several parties in whose favor the decree is rendered, the several distributive shares of the children, should have been adjudged to those who were in their minority, to be paid to them through their general guardians, if they had such guardians; but a decree which mentioned such children alone, as entitled to their distributive shares, is not reversible on error. It may be that general guardians had not been appointed, and if they had, or should be after-wards, their names could be suggested upon the record, and executions ordered to issue in the names of themselves and wards. But the order for an execution to issue in favor of the children is certainly erroneous.

The decree in favor of the female distributees who are married, should, not have been that their husbands recover in right pf their wives, but that the husband and wife recover for the use of the wife. This modification in the form of a decree in such a case, is made necessary by the act of March, 1848, “securing to married women, their separate estates, and for other purposes.” See Key, adm’r, v. Vaughn et al., at this term. How far it is allowable to amend the irregularities in the decree, will appear from this citation.

For the error in ordering executions to issue in favor of the infant distributees, if it be not amendable as a clerical misprision under the statute, it could be corrected by reversing and rendering. But the record does not inform us the amount of the costs which should have been allowed for the defence of the suit by Riggs, and consequently, the correction cannot be . here made by rendering such a decree as the orphans’ court should have rendered. The decree must therefore be reversed, and the cause remanded.