Moody v. Hemphill , 71 Ala. 169 ( 1881 )

BBICKELL, C. J.

"When this cause was heretofore before us, we decided tliat the legacy to Aaron Beady was due and payable at the expiration of eighteen months from the probate of the will of Edward Sims; and that more than twenty years having elapsed thereafter, all lawful claim to it was barred, when it was paid by the appellant. From that decision we are not inclined to depart; nor are we of opinion, the evidence proposed to be introduced on the last hearing before the Court of Probate, if admissible, could vary it.-Hemphill v. Moody, 62 Ala. 510.

An administrator, not unreasonably delaying settlement and distribution, and denying on oath the use of the funds of the estate, is not chargeable with interest. But if he lias used the funds, whether for his own profit or purposes or not — if he has misappropriated or misapplied them, he is chargeable with interest from the time of the misappropriation. The payment of the legacy to Aaron Beady, after it was barred by the lapse of time, was a misappropriation of the funds of the estate. They were no longer in the custody and under the dominion of the administrator, and taxes upon them could not have accrued with which he was chargeable, or which he could be compelled to pay. We are of the opinion, the Court of Probate did not en- in charging the appellant with interest on the money paid to the personal representative of Aaron Ready, and in rejecting the credit claimed for taxes thereon.

The general rule is, that an administrator entering into an unsuccessful contest with legatees or distributees, must pay costs; and is without a right or equity to re-imbursement from the assets in his hands to be administered.-Jones v. Deyer, 16 Ala. 221; Henderson v. Renfro, 31 Ala. 101. The statute regulating the settlement of administrations in the court of probate charges the executor or administrator with the costs of the contest of any item of his account, if the item is disallowed or reduced. — Code of 1876, § 2521. The credit for the payment of the legacy to Aaron Ready was allowed the administrator on the final settlement had in the Court of Probate. The decree of the court was reversed on appeal to this court, and the credit was disallowed. The good faith' of the administrator in making the payment, and in the consequent litigation, can not be doubted. There was reasonable ground of controversy; and it would be a rigid and harsh construction of the statute, which would force 'him into the payment of the costs of the appeal, a new and independent suit against him by the dissatisfied dis-tributees. The costs of the appeal paid by him the Court of Probate properly allowed as a credit.

Upon the principles laid down in Pickens v. Pickens, 35 Ala. 412, and in Smyley v. Reese, 53 Ala. 89, the fee paid counsel, its reasonableness not being controverted, for services rendered on the last final settlement in the Court of Probate, was a proper charge against the estate. r The costs of the suit in chancery, and the costs on appeal from the decree rendered in that suit, ought not to have been allowed.-Bendall v. Bendall, 24 Ala. 295; Anderson v. Anderson, 37 Ala. 683; Teague v. Corbitt, 57 Ala. 529.

There is no reason shown for charging the personal assets with taxes on the lands of the testator; and in the absence of some fact showing that the personal assets should be charged, and some fact shown rendering it the duty of the administrator, in his representative capacity, to pay them, the credits for these taxes should be disallowed. If the lands were devised, the estate in them had vested in the devisees, or if not devised, the estate had vested in the heirs, who were chargeable with the taxes upon them. If it had appeared the administrator had exercised the powers the statute gives him, for the sale or renting of lands, the necessities of the administration requiring an exercise of the power, and from them rents" could not be obtained, a different question would be presented. But upon the facts now shown, there was no liability resting upon the administrator for the taxes; the liability rested on the devisees or the heirs.

The court also erred in decreeing distribution directly to the heirs or next of kin of .Priscilla Bibb, deceased, On the death of a distributee, or of a legatee, the personal representative of such dstributee or legatee must be before the court of probate on the final settlement of the administration. — 1 Brick. Dig. 972, §§ 826-27.

For the errors we have pointed out, the decree of the Oourt of Probate must be reversed and the cause remanded. The costs of the appeal must be paid, one half by the appellant Moody, to be re-imbursed to him from the assets in his hands for administration, and one half must be paid by the appellees.