Blount County Bank v. Kay

• Decision Date: 01 February 1923
• Docket Number: 6 Div. 740.
• Citation: 209 Ala. 74,95 So. 297
• Parties: BLOUNT COUNTY BANK v. KAY.
• Court: Alabama Supreme Court

95 So. 297

209 Ala. 74

BLOUNT COUNTY BANK v. KAY.

6 Div. 740.

Supreme Court of Alabama

February 1, 1923

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

The circuit court having assumed jurisdiction of the administration of the estate of E. L. Wade, deceased, James Kay interposes his petition for allowance of a solicitor's fee. From a decree for petitioner, the Blount County Bank, administrator, appeals. Reversed and remanded.

Ward Nash & Fendley, of Oneonta, for appellant.

James Kay, of Oneonta, in pro. per.

SAYRE J.

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...