Elmore v. Cunninghame

• Decision Date: 15 June 1922
• Docket Number: 2 Div. 726.
• Citation: 93 So. 814,208 Ala. 15
• Parties: ELMORE ET AL. v. CUNNINGHAME.
• Court: Alabama Supreme Court

93 So. 814

208 Ala. 15

ELMORE ET AL. v. CUNNINGHAME.

2 Div. 726.

Supreme Court of Alabama

June 15, 1922

Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.

Bill by Benj. F. Elmore and another against Wm. Cunninghame, as executor of the will of Mary E. Crane, deceased, for the removal of said estate from the probate court to the equity court, and to require settlement and account by said executor. From a decree on final settlement by Cunninghame complainants appeal. Reversed and remanded.

I. I Canterbury, of Linden, and Pettus, Fuller & Lapsley, of Selma, for appellants.

Wm Cunninghame, of Linden, pro se.

McCLELLAN J.

This is an appeal by the administrator, etc., with the will annexed of the estate of Mary E. Crane, deceased, and Emma Pearl Herring from a decree of the circuit court, in equity, upon the accounting of William Cunninghame as executor of the estate of testatrix. The chief questions pressed for review are allowance of commissions to the appellee, of attorney's fees to him for professional services rendered by him, and for disallowing interest on balances in appellee's hands.

The appeal was docketed July 21, 1920, and continued, for what reason does not appear, until April 6, 1922, when submitted on appellee's motion to dismiss the appeal and on the merits.

The ground of the motion to dismiss the appeal taken by the administrator proceeds upon the theory that the administrator waived or forfeited his appeal, subjecting it to dismissal, by subsequently receiving from the register the sum paid into the court by the appellee under sanction of the decree from which the appeal is prosecuted. The doctrine to which the motion's theory is referable has been often stated and illustrated. Shannon v. Mower, 186 Ala. 472, 65 So. 338, citing earlier expressions of the rule. Exceptionally, however, the rule does not apply where the appellant, receiptor of the benefit of the decree or judgment appealed from, could not recover less than the amount of the decree or judgment. McCreeliss v. Hinkle, 17 Ala. 459, 462; Phillips v. Towles, 73 Ala. 406, 410; Whetstone v. McQueen, 137 Ala. 301, 315, 34 So. 229. 3 C.J. pp. 679-681. The present appeal is within the stated exception to the rule; and the motion to dismiss is overruled.

Mrs. Crane died in 1912. In her duly probated will she named appellee her executor. He qualified as such. In 1913 Mrs. Herring contested the validity of the entire will in the court of equity. The executor appealed; and the decree annulling the instrument as a will was reversed. Cunninghame v. Herring, 195 Ala. 469, 70 So. 148. Thereafter Mrs. Herring, only heir at law of the testatrix and beneficiary under the will of Mrs. Crane, and the executor executed a written agreement accepting the validity of the will, wherein the executor engaged to resign and promptly to file his accounts, etc., for final settlement. The resignation was effective October 1, 1917. In January, 1918, the present administrator (with will annexed) qualified as such, and has since continued in that relation and service. In response to citation, consequent upon petition by the administrator, the erstwhile executor filed his accounts and vouchers on September 15, 1919, the administration having been removed into equity on September 1, 1919.

It may be here observed that the erroneous assumption that theretofore removal into equity had been effected neither was nor is of consequence in respect of the erstwhile executor's duty seasonably to file his accounts, etc., for final settlement of his acts in the premises. The executor must, necessarily, be held to know and to have known in what court the administration was pending during his executorship. Misapprehension in that respect could afford no excuse or justification for tardiness or delay in filing his accounts, etc., for settlement upon his resignation.

Upon the resignation of an executor or administrator, the statute (Code, § 2692) imposes upon him the duty to file his accounts, etc., for settlement "within one month after his authority ceases." The appellee was derelict in his observance of this duty. His accounts and vouchers for settlement should have been filed in the court where the administration was pending by November 1, 1917. The fact that the World War was in progress in Europe afforded no excuse for delay beyond the statutory period; the appellee not being shown to have been absent on that account. Likewise the patriotic activities in which our people voluntarily participated in promotion of the war presented no obstacle to appellee's observance of this statutory requirement. Likewise, the prevalence of the epidemic of "flu," with which appellee was not shown to have been afflicted in October, 1917, furnished no excuse for the appellee's failure to file his accounts, etc., during October, 1917. The law placed upon the resigning executor the initial duty so to file his accounts and vouchers. Neither the exaction nor the observance of this duty is made to depend upon the initiative of any other person or authority.

It is hardly necessary to add that the effectual resignation of the executor on October 1, 1917, terminated his authority and duty (otherwise than to account) with respect to every executorial function allowed or required by Mrs. Crane's will.

As for interest, after the elapsing of a reasonable period for judicial settlement of the account subsequent to November 1, 1917, viz. January 1, 1918, on balances in the hands of the resigning executor (aside from lawfully allowable charges for court costs, attorney's fee on the settlement and commissions for the executor's services), the executor should have been charged with interest at the legal rate on such net balance in his hands from January 1, 1918, to the date of filing his accounts and vouchers, September 15, 1919. Subsequent to that date, viz. September 15, 1919, while the matter of the statement or settlement of his account was pending in the court, interest on any balance in his hands should not be charged against appellee.

The attorney's fee of $500 for attorney's services rendered by the executor on the mentioned contest of the will by Mrs. Herring was a proper allowance. Teague v Corbitt, 57 Ala. 529, 544; ...