Blount County Bank v. Kay

Pending the administration of the estate of E. L. Wade, deceased, in the probate court, his widow by attorney procured the administration to be removed to the equity side of the circuit court, and in the same bill prayed for a sale of the property of the estate, real and personal, and that out of the proceeds $2,000 be invested in a homestead for herself, that $1,000 be set apart to her as her exemption of personal property, and that certain sums, which she had expended in the payments of debts of the deceased, be repaid to her. Appellant administrator was not made a party. The defendants, children, heirs, and distributees, suffered decrees pro confesso. At that stage of the cause appellee, the attorney by whom the bill had been filed, interposed his petition, averring that complainant had dismissed him from further service in the cause, and praying that the court would allow him a reasonable fee as provided by section 5219 et seq. of the Code, "and that the same be prorated among the joint owners of said estate according to the value of each of the said shares in said estate." On the filing of this petition the court ordered a reference to ascertain the amount of petitioner's fee. The administrator appeared at the reference, and, upon the coming in of the register's report, excepted thereto on the ground that the estate of deceased was not liable to the attorney, and in any case, the amount awarded by the register was excessive. By its decree the court overruled the appellant administrator's exception, and on an exception taken by appellee, the attorney, increased his allowance from $175 to $250. The administrator has appealed.

Complainant, the widow of deceased, was entitled to remove the administration. Jemison v. Brasher, 202 Ala. 578, 81 So. 80. And in her bill she was entitled to ask for a sale of the property of the estate for division or distribution if the estate was ready for that step. Dent v. Foy, 206 Ala. 454,90 So. 317. But this does not mean that for services rendered in that behalf complainant's attorney was due to be paid out of the fund realized from the estate of the deceased; still less does it mean that he was entitled to be paid out of the estate for services rendered to complainant for her individual benefit. Services rendered by appellee were for the individual benefit of his client, the widow, not for the benefit of the estate, and for such services he was not entitled to be paid out of the estate in the manner proposed in his petition. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Bidwell v. Johnson,191 Ala. 195, 67 So. 985. By so much of the proceedings in this cause as sought a sale of the property of the estate, the widow broke in upon the regular course of administration. This is permitted in some circumstances (Dent v. Foy, supra); still the sale here was a step in the due course of administration, and must, in our judgment, be referred to section 5222 of the Code, where provision is made for sale for distribution by the probate court, rather than to section 5219, which conferred upon the probate court the jurisdiction theretofore exercised by chancery, and does not contemplate sales in cases in which the property has previously been brought within the power of the court for the purposes of administration. In such last-named cases, that is, cases falling under the rule of 5222, no provision is made for an attorney's fee. According to appellee's theory of the case everything done by him as attorney for the widow of deceased might have been done by the administrator in the regular course of the pending administration, if the administrator had started first (Dent v. Foy, supra), but it will hardly be contended that section 5219 confers upon the administrator's attorney the right to a fee for prosecuting a charge against the estate, or that it is to the advantage of an estate that such proceeding should be set on foot by an heir, distributee, or widow of the deceased, rather than by the administrator. To whatever section the proceeding be referred, petitioner was not entitled to be paid out of the fund to be realized from a sale of decedent's property for services rendered for the peculiar personal benefit of his client. Wilks v. Wilks and Bidwell v. Johnson, supra.

Appellee has moved to dismiss the appeal on the ground that it is taken from an interlocutory decree. But the decree appealed from, the decree of February 1, 1922, is not an interlocutory decree. It purports to settle with definition and finality the rights of appellee against the estate of decedent. Judgment is rendered for appellee against appellant for the sum of $250 and costs. It does not make any disposition of the pending settlement of the estate of decedent, but appellee is not a party to that proceeding; he is rather in the position of a creditor who has recovered judgment against the administrator, and it would be quite an anomaly to hold that the administrator could not test the grounds of the judgment until he has settled the estate.

For the reasons indicated, the motion to dismiss the appeal is overruled, and the decree appealed from is reversed.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.