Henderson v. Simmons , 33 Ala. 291 ( 1858 )

STONE, J.—

The facts in this record are not full enough, to satisfy us that the probate court committed any error in the matter of the corn sold.

Mrs. Simmons, having occupied the house and lot in - the town of Talladega during the greater part of the year 1854, is chargeable with a reasonable rent therefor. Smith v. King, 22 Ala. 558.

The court did not err in allowing voucher No. 1. The repairs on the house and lot are shown to have been necessary, and the testimony satisfies us that they were performed. We find nothing in the record to convince us that the repairs were not worth the price paid; but, on the contrary, we think it was reasonable. Mr. Elrod has receipted for this demand; and notwithstanding the subject is still left open for adjustment between him and Mrs. Simmons in their private accounts, it can never again be made a charge against the estate. There’ was no error in allowing this item.—Pinckard v. Pinckard, 24 Ala. 250.

It is evidently the duty of an admmyimtOT'to perform all the ordinary services of the «"reasonably within his power. For in performing ordinary duties, he^i^oUedjJsrcm to \>eeial and extraordinary compensatiom"Skpenses^Sr^sarily incurred in and about the adminiafcrationj^blsea|Kledto be reimbursed.—See Newberry v. s^wbrrw2pAla. 691. For extraordinary services, and for smSrtSTriTiheir nature require a degree of skill or appliances not within the command of ordinary persons, he may employ agencies; and reasonable expenses in this way incurred for the benfit of the estate, are a proper charge against such estate. Pinckard v. Pinckard, 24 Ala. 250; Reese v. Gresham, 29 Ala. 91; Shepherd’s Digest, 162, 164-5.

Mr. Elrod was surety of Mrs. Simmons on her administration bond. If a decree be rendered against Mrs. Simmons, and execution returned no property found, an execution can then issue against him, also, for the collection of such decree.—Code, § 1922. Voucher No. 46 rests alone on Mr. Elrod’s evidence. He was not a competent witness for the administratrix; and this item, without other proof, should be rejected.—Code, § 2302; McCreeliss v. Hinkle, 17 Ala. 459.

It is the privilege, if not the duty, of one named as executor of a paper purporting to be a last will and testament, to propound it for probate. If he have no knowledge or reasonable grounds on which to predicate a well grounded suspicion against the legality of the will, and propound the paper in good faith, he but carries out the intention with which he was appointed. Any reasonable costs and expenses incurred by him in the honest endeavor to give effect to the will, is a proper charge on the estate in his hands. Further, if he, after incurring such expenses, resign the trust without making payment, and receive no credit in his account for such expenses, a succeeding administrator, in the execution of the will, may pay such expenses, and charge the estate therewith.

On the other hand, if the executor incur expenses in the fruitless attempt to establish a will, when there exist, within his knowledge, good, grounds against its validity, a different rule prevails. This question, in a great degree, depends on the good faith with which the executor has acted. We lay down no absolute rule for the government of all cases, for each must, to a considerable extent, depend on its own circumstances. The right to charge the estate, however, in all cases, will be limited to proper expenses incurred in a fair and lawful trial of the issue devisavit vel non. It cannot be so extended as to embrace money paid to silence opposition to the establishment of the will.—Koppenhaffer v. Isaacs, 7 Watts, 170; Rogers’ appeal, 1 Harris, (Penn.) 569; Scott’s estate, 9 Watts & Serg. 98; Geddis’ appeal, 9 Watts, 284; Bradford v. Boudinot, 3 Wash. Cir. Ct. 122; 1 Wms, on Ex’rs, 271; 1 Lomax on Ex’rs, 203; Wills v. Spraggins, 3 Grattan, 568-9.

Bnder these rules, we affirm the decree of the probate court, in allowing the costs of the contest of the will, and in disallowing the item .of $2300, paid Edward Henry, jr., on compromise.

The item of attorneys’ fees we would allow, if Mr. McPherson, the executor and proponent, hád employed them. He, however, had nothing to do with it. They were employed by Mrs. Simmons, when she had no right to charge the estate. Not standing in any relation which made it either her legal or moral duty to establish the will, the expenses incurred by her to that end must be regarded as incurred for her personal emolument, and are only a personal charge on her.—Dietach’s appeal, 2 Watts, 332. That item must be disallowed.

The matter of the receipt of Looney will probably not again be presented as it now is'. The proof in the record is, perhaps, not full enough to exonerate the administratrix. The inventory is not before us, and we are not informed how she returned those notes to the probate -court. ¥e deem it unnecessary to comment further on this item.

There is nothing in this record which enables us to •determine that the witness-certificates, in the suit against Fluker, were not a proper charge against the estate. The costs incurred on them, after judgments were rendered, were incurred in her own wrong, as she had effects of the estate, and ought to have made payment.

Having disposed of all the questions raised by this record, we feel it our duty to remark, that some of the objections taken in this ease betray a too rigid economy in * the matter of allowances to administrators. They (administrators) fill a fiduciary relation which is indispensable in our judicial system; and in the absence of bad faith, the law does not visit them with severer intendments, than are indulged against agents generally.—See Gould v. Hayes, 19 Ala. 438.

Judgment of the probate court reversed, and cause remanded.

The principles we have announced dispose of the cross assignments of error, adversely to the party making those assignments. It results that there is no error in this record, prejudicial to Mrs. Simmons.