Pickens' Adm'r v. Pickens' Distributees , 35 Ala. 442 ( 1860 )

STONE, J.

The estate of intestate, in this case, was kept together by order of the probate court, under section 1902 of the Code. The various exceptions and assignments of error render it necessary that we shall construe sections 1902-09 of the Code, so far as they authorize expenditures for estates thus kept together. Ve premise, that no question seems to have been raised touching the conduct of the administration during the year 1856, in which year Mr. Pickens died. — See Pinckard v. Pinckard, 24 Ala. 250; Code, § § 1900, 1901.

The language of section 1900 of the Code is somewhat different from that of sections 1902, etseq. The purposes of the sections are also different. Section 1900 takes the place of the act of 1826, Clay’s Pig. 196, § 4. It operates only during the year of decedent’s death. The act of 1826 was considered in Pinckard v. Pinckard, supra ; but we need not, and do not, now announce whether section 1900 of the Code will receive the same construction.

The sections of the Code, which the wants of this case require us to construe, take the place of the act of 1835. Clay’s Pig. 198. The most important question presented by this record, may be thus stated: When an estate is ordered to be kept together under section 1902 of the Code, is the family establishment to be kept up, and the family to be supported, at the expense of the estate? Or are the expenses of the family a separate charge against each distributee ?

The legislation on this subject is somewhatmeagre, and we are aware that some difficulties and embarrassments must grow out of any solution we may give of the question. Still we feel constrained to hold, that section 1902 of the Code, and those following on the same subject, furnish no authority for maintaining the family of the deceased out of the assets proper of the estate ; nor should the family establishment be kept up at the expense of the estate. Some of the reasons which lead us to this conclusion are the following:

1. The entire absence of express statutory authority for such proceeding.

2. Section 1903 of the Code declares, that the dower of the widow must, in all cases, be reserved. This, in many cases, would deprive the estate of the use and occupation of the homestead, and would secure the dwelling-house to the individual use of the widow. If her dower should be so laid off as not to include the dwelling-house, then the opposite doctrine would secure to the widow a home and support at the expense of the estate, in addition to the use and benefit of her dower interest, already allotted to her.

3. Section 1906 of the Code requires, that separate accounts shall be kept of moneys appropriated and expended for each distributee. This repels the idea of a general expenditure.

It results from these principles, that no portion of the expenditure for the family, either in the year 185T or 1858, was a proper charge against the collective estate. This principle excludes from the general account expenditures for furniture, provisions, luxuries, servant hire, and every outlay which was not for the use of the plantation. But, inasmuch as the personal representative of the estate, in a case like the present, (and in the absence of guardians appointed for the minor distributees,) performs many, if not most of the functions of a guardian, the administratrix was authorized to supply board, clothing, education, &c., to the minors, in style corresponding with their fortune, social position, and expectations in life; and such supplies would be proper charges against each individual distributee. No absolute scale of expenditures can be laid down. This must depend on the fortune of the minor. It may, however, correspond with what ordinarily prudent persons, of similar fortune and social position, expend in the support, and intellectual, moral and social training of their own children.

Mr. Pickens left an ample fortune. His children were all of ages which rendered it peculiarly proper that a mother’s care and watchfulness should be over and around them. Save the intervals when it was necessary for the older children to be from home at school, no place was so appropriate or so secure for their moral training, as the home and society of their mother. For the enjoyment of that home and its benefits, it is proper that their several distributive interests shall be charged with a sum which shall remunerate her for the outlay and expense she may have incurred on tlieir account; and this outlay and expense will not be unreasonable, and should not be abated, unless it transcend the reasonable expenditures of ordinarily prudent heads of families, having similar fortunes. If the tender years of some of the children rendered it proper to have the services of a nurse of rare and desirable qualifications, the administratrix was authorized to procure such nurse, provided she did not pay an unreasonably high price for the same; and the outlay would be a proper charge against the children, for whose benefit the nurse was procured. The same rule will apply to the case of the private tutor.

We have spokeu above of the benefits to the children of the presence and influence of their mother. It cannot be expected that a lady, of the fortune which Mrs; Pickens has, will always remain at home. The testimony in the record, as well as our own experience, informs us that persons thus circumstanced visit watering places, and other retreats for health and recreation ; and we cannot say that the children as well as the mother would not probably he benefited by such visit. It cannot he affirmed that an occasional summer excursion, even to the Virginia Springs, such as is described in this record, is an unreasonable outlay for persons having the fortunes which those children are shown to have. This charge should have been properly apportioned among the children.

What we have said above will furnish a guide for a future settlement. Wo may add, that we find no item of outlay or expense, which, in view of the value of the estate in Mrs. Pickens’ hands, seems to be unreasonable or prodigal on her part. While it is not proper that the household expenses shall be apportioned among the several inmates, per capita, still it is eminently proper that the children, for tlieir maintenance, shall be charged on a scale graduated by the style and quality of living in the family, unless, in so doing, a heavier expenditure is incurred than is usual with families similarly circumstanced. It being fie and proper to train the children up in the circle, social and intellectual, in which their fortunes will justly entitle them to move, it is but just that their several fortunes shall bear the burden of these advantages.

[2.] The charge made by the administratrix for missionary or religious services, procured for the slaves of the estate, was rejected. We do not assent to the proposition, that the administrator deals with the slaves of the estate, only in their character of property. Though they are property, they are intelligent beings, and under moral accountability. The master, or whoever stands in his place, is morally bound to furnish to this dependent and subject class such moral and religious instruction as is adapted to its political status. Such instruction, properly directed, not only benefits the slave in his moral relations, but enhances his value as an honest, faithful servant and laborer. Seasonable compensation for such services, when furnished and paid for by the administrator, becomes a proper charge against the estate.

[3.] In the cases of Pinckard v. Pinckard,(24 Ala. 250,) and Bendall v. Bendall, (ib. 295,) the question of compensation to an attorney, for services rendered the administrator in his settlements, was considered. In each of those eases, there was contest as to some of the items. This court said, “ If the administrator is met with exceptions to his account and vouchers, or to one or more important items, there seems to he no reason why he should be deuied the assistance of legal counsel.” Neither of those cases presented the question, when no exceptions were filed. The present record raises this direct question.

Every administration, even in its simplest form, casts upon the incumbent the performance of some duties, for the correct performance of which some knowledge of the law is necessaiy. The law, in adjusting tbe preferences in the right to administer on estates, or to execute wills, has not declared that legal knowledge is one of the qualifications. So far from this being tbe case, the widow, 'who is certainly not presumed to be learned in the law, stands first in the list of preferred applicants. To deny to an administrator the right to have counsel, except when exceptions are filed, is to take from him, except at his own expense, the means of protecting himself against after liabilities and losses, by proceeding correctly in the several stages of the administration.

Much of the severe and disastrous litigation in this State, in which estates and their representatives have been involved, may be traced to some error in what may be called the simple stages of the administration. It would be difficult to estimate the amount of loss, chargeable to what would be set down as slight errors. A little precaution, and considerate legal advice, would generally prevent these serious, and frequently ruinous consequences. We do not say that every step in the administration should be taken under legal advice. That might lead to too great expense. There are certain proceedings, however, which require accuracy. Inventories, orders to sell land and slaves, and accounts current for settlement, are of this class. In these stages, unless it appears that the representative has unnecessarily sought to charge the estate, a reasonable free for counsel should not be disallowed. Of course, the well-being of the estate, and the reasonable security of the administrator, should alone be regarded as justifying such expenditure. The claim for counsel fees should have been allowed.

■ Reversed and remanded.