Collins v. Clements

ANDERSON, C. J. (1, 2) The appellee admitted, as a witness, that he deposited certain funds, belonging to the estate, in the bank to his individual credit, and that he drew upon same for his own use on different occasions. This was such a conversion and commingling of funds as to render him liable to account for the interest on same during the period of conversion, and the trial court erred in not charging him with interest on the fund kept by him in the bank to his individual credit.—Henderson v. Henderson, 58 Ala. 582; 18 Cyc. 258; Pearson v. Darringion, 32 Ala. 227; Ivey v. Coleman, 42 Ala. 409; Chancellor v. Chancellor, 177 Ala. 44, 58 South. 423, 45 L. R. A. (N. S.) 1, Ann. Cas. 1915C, 47. It is true the appellee testified that Mrs. Collins, [620] the life owner, advised him not to lend the money, and this might preclude her from claiming interest had there been no conversion, as for a failure to loan same but this gave him no right to convert the fund and escape accounting for interest upon the settlement of the estate. (3) The commission allowed does not seem to have exceeded the maximum authorized by section 2690 of the Code of 1907, and the amount allowed, so long as it was within the limit fixed by statute, was largely discretionary with the trial court. (4) The various items to which exceptions were reserved, with the exception of expenses incurred, were for compensation for personal service in and about the management and settlement of the estate, the very thing for which he received the commission, and should not have been allowed. These items are not for special service for which he was entitled to extra compensation. If the expenses charged for certain trips were necessary and reasonable, they should be allowed as actual necessary expenses, but not as extra compensation, but to compensate the appellee for his personal services in looking after the estate, such as per diem charges for attending court while probating the will, making settlement, advising with counsel, etc., is covered by the commission provided and to allow him extra compensation for such service would operate to give him double pay for the same service. The decree of the probate court is reversed, and the cause is remanded. Reversed and remanded. McClellan, Sayre, and Gardner, JJ., concur.