Alexander v. Bates

• Decision Date: 10 May 1900
• Citation: 28 So. 415,127 Ala. 328
• Parties: ALEXANDER v. BATES ET AL. BATES ET AL. v. ALEXANDER.
• Court: Alabama Supreme Court

28 So. 415

127 Ala. 328

ALEXANDER v. BATES ET AL.

BATES ET AL. v. ALEXANDER.

Supreme Court of Alabama

May 10, 1900

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Actions by Henry Alexander against Theodore C. Bates and others, and by Theodore C. Bates and others against Henry Alexander, for the settlement of the estate of Susan F. Rouse, deceased. From a decree directing certain costs of administration be paid out of a bequest to Henry Alexander, he appeals. From an interlocutory decree determining the fund in the hands of the executor, and from the allowance of certain fees and expenses to the executor on the final decree, Theodore C. Bates and his co-plaintiffs appeal. Reversed on appeal of Alexander. Affirmed on appeal of Bates and others.

Miss Susan F. Rouse died on September 7, 1891, leaving a last will and testament. In this will Frederick G. Bromberg was nominated as executor. As such executor he filed the will in the probate court of Mobile county for probate. There was a contest of the probate of the will instituted, but it was subsequently dismissed. Theodore C. Bates, Martha Bates Brown, and Myra Eugenia Bates Bernard, as the heirs and next of kin of Miss Susan F. Rouse, filed a bill in the chancery court of Mobile on March 28, 1892, for the purpose of having the administration of said estate removed into the chancery court; and, in addition to the other relief asked, the complainants prayed that their rights as next of kin and heirs at law of Susan F. Rouse be ascertained and determined that Frederick G. Bromberg, as executor, be required to give bond or sufficient security, and that at the proper time the property and bonds of the estate be distributed as the rights of the complainants shall appear. There was attached to this bill a copy of the last will and testament of Susan F. Rouse deceased. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainants were entitled to the relief prayed for, ordered the administration of the estate removed into the chancery court, and, among other things, decreed that the complainants in said bill were the next of kin and heirs at law of said Susan F. Rouse, deceased, and as such were entitled to that portion of her estate as to which she died intestate. It was also ordered in said decree that the register of the court should hold a reference, and ascertain and report to the court what amount of money said Frederick G. Bromberg, as executor of the estate of the said Susan F. Rouse, deceased had received from the said estate, and what money he had collected, and from what sources, and what debts, if any, of said estate were outstanding and unpaid, "and whether or not there is any reason why a final settlement of said estate should not be forthwith had." This decree was rendered on April 24, 1895. In obedience to said decree rendered on April 24, 1895, the register held a reference, and, after the hearing of the testimony, made a report. In this report he ascertained that there were certain credits which should be allowed Frederick G. Bromberg. The register also reported "that said estate is not ready for a final settlement for the reason that there remains to be collected indebtedness due the estate." It was also stated in said report that, "in reporting the debts as paid, reference is made only to those debts existing at the time of the death of Miss Rouse and the funeral expenses." The debts incurred in the administration are not reported, as they do not come within the scope of the reference. This report was filed on October 22, 1895. There were exceptions filed to this report by the complainants. Upon the submission of the cause for decree upon the report of the register, and exceptions thereto filed, the court decreed that the exceptions of the complainants were not well taken, and ordered them overruled, and after making a correction in said report as to the balance in the hands of Bromberg at the death of Miss Rouse, fixing the amount at $8,000 instead of $8,247, as found by the register, the report, as thus corrected, was in all things ratified and confirmed. This decree was rendered on January 16, 1896. On the 30th of October, 1896, Frederick G. Bromberg, as executor of the estate of Susan F. Rouse, filed his accounts and vouchers for the final settlement of his trust, and prayed to have a final settlement of his executorship. In this account he charged himself with having received $14,735.65. On the credit side of the account, he credited himself with the sundry disbursements, which were allowed in the report of the register made on October 22, 1895, which report was confirmed by the decree of the chancellor on January 16, 1896. Among the other items of credit were the state and county taxes for the year 1891, amounting to $124.02, and there were many other items of credit which evidenced the disbursement by the executor in payment of the expenses incurred in conducting the litigation to which the estate had been subjected. These items included the payment of attorney's fees and the court costs in the chancery court and in the supreme court on two former appeals (13 So. 557; 20 So. 786), incident to the litigation which was commenced by the filing by the complainants of the original bill on March 28, 1892, and also the preparing of briefs, and stenographic and typewriting work in the preparation of said case. There was also included among the items of credit the following: For resisting the contest of the will in the probate court, $814; "5 per cent. commissions on $14,735.65, $786.78." The executor also reported that there had come into his hands as executor seven Alabama state bonds, class C, of $1,000 each, with all the coupons attached from January 1, 1892, being the same bonds referred to in the fourth item of the will of S. F Rouse, deceased; that of these bonds he had delivered to said Alexander four of them, together with all the coupons attached to said bonds, for which he had taken a receipt, and there remained still in his hands three of said bonds; that from these three remaining bonds there "are to be deducted the debts, funeral expenses, and expenses of administration of the deceased, as set out in the statement heretofore filed" in the case. Upon the filing by the executor of his accounts and vouchers, and his asking for a final settlement, the court ordered that said accounts and vouchers be referred to the register for his examination and for a report thereon. The complainants filed their exceptions to the executor's accounts, and objected to the several items on the debit side of said account, which evidenced the disbursements as set forth above. Henry Alexander filed his exceptions to the executor's accounts, which were as follows: "(1) Alexander objects to the item of $814, numbered 27 on said account, as excessive. The will was not contested in the probate court. The contest was filed, but afterwards withdrawn, and the will was probated without contest. $814 is entirely too much and unreasonable for a fee for such services. $255 is a full fee. (2) Alexander objects and excepts to so much of the supplemental report filed by said executor on the 4th day of November, 1896, as is shown at the bottom of said supplemental report, and as is in the following words, to wit: 'From which are to be deducted the debts, funeral expenses, and expenses of administration of the deceased, as set out in the statements heretofore filed by me in this cause, and of record thereon."'

In accordance with the order of the court, the register held a reference for the purpose of ascertaining the correctness of the accounts and vouchers of the executor. After holding the reference, he filed his report on December 18, 1896, in which he reported substantially as follows: That he found the debit side of the executor's account in all things correct, but that on the credit side of said account the executor had improperly credited himself with $124.02 as taxes for the year 1891, inasmuch as said amount was allowed by the register's report of October 22, 1895, as a proper charge against the estate of Susan F. Rouse, deceased; that the executor had improperly credited himself with the sum of $814 as compensation for his services in the matter of the contest of the will of Susan F. Rouse, deceased, in the probate court of Mobile county; that a reasonable and proper fee for the services rendered by the executor in the matter of the contest of the will would be $489.50; that the sum of $736.78 would be a reasonable and proper commission to be allowed the executor, being 5 per cent. on the moneys that came into his hands as such executor; that upon restating the account of the executor of the estate of Susan F. Rouse, deceased, the register found that said executor had received $14,735.65 and had properly disbursed the sum of $14,097.15, leaving in his hands, as such executor, a balance of $638.50, which said balance is due the estate of Susan F. Rouse, deceased. It was further reported that the executor had in his hands three Alabama state bonds, class C., of the value of $1,000 each, with all of the coupons attached from July 1, 1892, which bonds were three of the seven bonds referred to in item 4 of the will of Susan F. Rouse; and the register further found and reported that the debts and funeral expenses of said decedent, and the costs of the administration of her said estate, should be deducted and paid from the proceeds of the said three bonds and the interest coupons attached. There was then set out in the report a statement of the debts and funeral expenses and the costs of the administration of said estate, and the costs of the court remaining due and unpaid at the date of making the report, amounting, in...