Smith v. Kennard's , 38 Ala. 695 ( 1863 )

STONE, J.

The will of Mr. Kennard, out of which this litigation has grown, imposed active duties and trusts on his executors, to continue until the youngest child should come of age, oi; marry. Among these active dutes was the direction to hire out the slaves, Caroline, Charlotte, Liza, Dave, Big Eady, Little Eady, Rachel, and Amanda ; and when that event — the majority or marriage of his youngest child — should come to pass, then the executors were directed to sell said slaves for general distribution among all of testator’s children. The will also gave to each of the minor children, of whom there were several, and one in ventre sa mere, a pecuniary legacy of $525, to be paid as they severally arrived at age, or married. The will then set apart the hire of said slaves, the proceeds of two quarter-sections of land ordered to be sold, and the proceeds of certain property in the town of Demopolis, for the payment of the legacies to testator’s children. After this, the will adds : “It is my wish, that my minor children be educated and supported out of the same fund that their legacies are to be raised out of.”

[1.] .It is objected against the allowance made to the executor, for moneys paid by him in the education and support of the minor children, that the will did not constitute him guardian of such minors, and therefore he was not the proper person to make such disbursements. The will of Mr. Kennard clearly shows, that it was his intention and direction that the bulk of his estate should be kept together, until his youngest child came of age or married. During all that time, most of his estate was, and would be, necessarily, in the hands of the executor. The minor children could claim no part of their legacy, either under the special or residuary clause, until they severally attained to lawful age or married ; save their education and support, for which the will made provision. Under these circumstances, we think it clear, that the executor was fully authorized to disburse from the proper fund whatever might be necessary for the education and support of the minors. The direction for the education and support of the children was as much a bequest, as was any other provision of the will ; and the duty it enjoined was purely executorial. — See Pickens v. Pickens, 35 Ala. 442.

[2.] It is further objected, that the disbursements made by the executor in the education and support of the minor children, should not have been allowed as general credits to him in his final settlement, but should have been allowed only out of the special fund on which they were charged in the bequeét. We deem is unnecessary to inquire into the question, whether the education and support of the minor children was a charge, limited to the three funds specified in the will — namely, the hire of the slaves, the sale of the two quarter-sections of land, and the sale of the property in Demopolis. If such be the case, it cannot change the result in this case, as we will now proceed to show. The pecuniary legacies, although charged on these three funds, are not limited to them for payment. Should those funds fall short in the payment of the legacies, it is obvious the deficit must be made up from the general assets. The pecuniary legacies, then, can assert no preference or priority of payment over the expenses for education and support; but, if the latter be limited to those funds, and cannot be paid out of the general assets, then equity will marshal the securities, so as to give to the expenses for education and support a prior claim of payment. — Marine Dock & Mutual Insurance Company v. Huder, 35 Ala. 713 ; Chapman v. Hamilton, 19 Ala. 121 ; Carter v. Balfour, ib. 814 ; Lightfoot v. Lightfoot, 27 Ala. 351. It being shown, then, that, on this supposition, the charge for education and support would have a prior claim on these funds for payment, it only remains to inquire, whether the hire of the slaves, the sale of the two quarter-sections of land, and the sale of the property in Demopolis, yielded a sufficient fund for the payment. Looking ■ into the register’s report, we find they yielded a considerable surplus, which passed into the fund for the payment of the pecuniary legacies, and the several interests under the residuary clause. It requires, then, no elaboration to show, that the solution of the question propounded above becomes unimportant.

[3.] The other questions raised by the assignments of error relate to the rule of computing interest against the executor, his right to compensation in the shape of commissions, the payment of his solicitor’s fees out of the trust fund, and the question of costs in this suit. On none of these questions do we deem it necessary or proper that we should travel out of our own decisions, in search of the rule. The doctrine on these subjects is settled in Alabama.

We hold, that Mr. King was properly chargeable with interest, and that the chancellor did right in refusing to charge him with compound interest. He was negligent, but does not appear to have been “guilty of such gross neglect in the execution of the trust, as to be evidence of a corrupt intention.” — Bryant v. Craig, 12 Ala. 354; Pearson v. Darrington, 32 Ala. 227, 268.

[4.] So, Mr. King was entitled to commissions as executor. He is not shown to have been guilty of “gross negligence, or willful default.” Under our decisions, the personal representative, to deprive himself of all right to compensation, must have been guilty of gross negligence, or willful default, resulting in injury to the estate. — Powell v. Powell, 10 Ala. 914; Gould v. Hayes, 19 Ala. 438 ; Stewart v. Stewart, 31 Ala. 207, 217 ; Pearson v. Darrington, 32 Ala. 227, 270 ; Emanuel v. Draughan, 14 Ala. 302.

[5.] The executor is also entitled to have his solicitor’s fees paid out of the trust fund, unless the litigation was brought about by his own fault or laches. — Bendall v. Bendall, 24 Ala. 295 ; Williamson v. Mason, 23 Ala. 488 : Stewart v. Stewart, 31 Ala. 207, 218; Pearson v. Darrington, 32 Ala. 227, 273 ; Pickens v. Pickens, 35 Ala. 442 ; Henderson v. Simmons, 33 Ala. 291. Under this rule, we hold, that the litigation in this case was, in its extent, caused by the equal fault of the complainants and Mr. King. We, therefore, divide both the defendant King’s solicitor’s fees, and the costs in the court below. In other words, half the costs in the court below must be taxed against Mr. King; and the other half of the costs, and half the solicitor’s fees, must be paid out of the fund deposited with the register.

Let the costs of this appeal be paid equally by Mr. King, and by the adult male appellants.

Reversed and remanded.

Note by Reporter. — -This case was decided at the June term, 1860, but the record was for some time mislaid.