May v. Green

SOMEB.YILLE, J. The decree rendered by the chancellor in this cause, on the 21st April, 1880, is obviously a final decree in every essential particular. It shows that the cause was submitted for disposition by final decree, that the court assumed jurisdiction of the estate of the testator, as prayed by the bill, ordered the removal of its settlement from the probate to the chancery court, referred the taking of the account to the register, and laid down the rules by which the administrator was to [166] be governed in making a statement of his account with the estate and with the distributees. This was a settlement by the chancery court of all the equities of the case, leaving nothing to be done but the actual taking of the account by the register. The decree is, therefore, final.— Walker v. Crawford, 70 Ala. 567; Jones v. Wilson, 54 Ala. 50 ; Garner v. Prewitt, 32 Ala. 18. This appeal not having been taken within one year from the date of its rendition — the limit fixed by statute — no assignments of error can be predicated upon any supposed errors in it. The motion made to strike out the assignments of error having reference to the rulings of the court as appearing in this decree, must be sustained. The rule may now be considered as firmly settled by the decisions of this court, that when an administrator, without sufficient excuse, procrastinates making a final settlement and distribution of an estate for an unreasonable length of time, he is liable for interest on funds of the estate in his hands, and which should have been distributed by him to the parties entitled, although he may make the exculpatory affidavit required by section 2520 of the Code, expressly denying the fact that he has used such funds for his own benefit.—Clark v. Knox, 70 Ala. 607 ; Clark v. Hughes, 71 Ala. 163. It does not appear that the register has been guilty of any misapplication of this rule in the charges of interest made against the administrator in the statement of his account. The administrator was not entitled to full commissions in good currency on the large amount of Confederate money collected and distributed by him. The equitable just value of the usual two and a half per cent., reduced from a basis of Confederate currency to that of the present lawful money of the country, is all that could be demanded. The register allowed one-fifth, and this is not shown to be unreasonable.—Dockery v. McDowell, 40 Ala. 476 ; Cummings v. Bradley, 57 Ala. 224. The evidence shows, moreover, a balance of Confederate money which fell as worthless in the administrator’s hands at the termination of the war, which was quite sufficient to have discharged these commissions. He is not charged with this money in his account, and he should have used it in paying what -was due himself by the estate. ITe should not have received a currency from others which he declined to take himself. The chancellor properly refused to allow any attorneys’ fees or costs incurred by the administrator in his litigation with Scroggins, in which he sought to enforce collection of the note given'for the purchase-money of land sold under an order of the probate court. The administrator was himself a surety on this note, having voluntarily assumed in such capacity to guar [167] antee its punctual payment to the estate when due. The judgment obtained at law proved fruitless in consequence of the administrator’s failure to take two good and, sufficient sureties on the note, as he was required to do by statute. — Code 1876, § 2461. This, of itself, rendered him chargeable with the purchase-money.—Jones v. Faulk, 54 Ala. 184 ; Walls v. Grigsby, 42 Ala. 473. As one of the sureties on the note, the administrator’s duty was plain. He owed the debt as much as the principal, and he was not entitled to expenses occasioned by his own and his principal’s default, or breach of legal duty. He should have charged himself with the full amount of the purchase-money, with lawful interest, without burdening the estate with the costs of his own negligence. "We discover no error in the amount allowed the administrator for attorneys’ fees. The record fails to disclose any special or extraordinary services for which the administrator was entitled to compensation. Proof, moreover, should have been made of each special service with its particular value, and the whole should not have been aggregated by mere estimate without being itemized. We are of opinion, however, that the decree of the chancellor is erroneous in one particular. The appellant, Samuel B. May, was the husband of Martha F. May, who was one of the distributees of the estate of Hudson ICirk, of which he was administrator. He, therefore, had a right to collect for her, as her statutory trustee, her distributive share of the estate. The language of the statute is : “ The husband has power to receive property coming to his wife, or to which she is entitled, and his receipt therefor is a full discharge in law and equity.” Code 1876, § 2710. The decree for two thousand and fifty-one 25-100 dollars, rendered in favor of Mrs. May against her husband and his sureties on the administrator’s bond, can not, for this reason, be sustained. The husband was authorized to receive the amount, and his receipt of it was a satisfaction of the claim. If he converted it to his own use in violation of his trust, the wife’s only remedy was by bill in equity, filed for the purpose of removing him from the trust, because of his unfitness or incapacity leading to his indiscreet management of her property. — Code 1876, § 2717. The decree of the chancellor must be reversed, and a decree here rendered, adjudging that Mrs. Martha F. May is entitled to recover no portion of her share of said estate which went into the hands of her husband, the said Samuel B. May. And a decree will, furthermore, be here rendered, adjudging each of the other distributees entitled to recover the several sums adjudged them by the chancellor, as set forth in his decree, no change being made therein except as to the share of Mrs. May.