Farmers' Bank & Trust Co. v. Borroughs

• Decision Date: 22 December 1927
• Docket Number: 2 Div. 922
• Citation: 114 So. 909,217 Ala. 97
• Court: Alabama Supreme Court
• Parties: FARMERS' BANK & TRUST CO. v. BORROUGHS.

114 So. 909

217 Ala. 97

FARMERS' BANK & TRUST CO. v. BORROUGHS.

2 Div. 922

Supreme Court of Alabama

December 22, 1927

Appeal from Circuit Court, Wilcox County; Thomas E. Knight, Judge.

Bill in equity by Fannie P. Borroughs against the Farmers' Bank &amp Trust Company, as executor of the estate of William M Borroughs, deceased, and another. From a decree on demurrer to the bill, the named respondent appeals. Affirmed.

A.S Johnson, of Thomasville, and Pettus, Fuller & Lapsley, of Selma, for appellant.

B.M. Miller, of Camden, for appellee.

BOULDIN J.

This is a bill in equity filed by the widow of a decedent against the executor of the estate for the following purposes: To remove the administration into a court of equity; to require the executor to give bond; to require an inventory of the personal estate to be filed and a report of rents received; to set apart homestead and personal exemptions to widow and minor children; to assign dower, and to require payment to the dowress of all rents received by the executor from the dower lands; to sell the standing timber on the lands of the estate for the payment of a mortgage indebtedness thereon, and pay the widow a ratable proportion of any balance derived from timber sold from the dower lands to make final settlement of the estate; and to ascertain and decree reasonable attorney's fees for complainant's solicitor, to be paid from the common fund.

Demurrers to certain aspects of the bill were sustained, and demurrers to the bill as a whole and certain other aspects were overruled.

The appeal is by respondent to review the decrees overruling the demurrers challenging the sufficiency of the bill in two aspects: First. In the matter of requiring an executor's bond. Second. As regards the claim for solicitor's fees.

The testator, by express provision, exempted the executor from giving bond. In such event, bond must not be required except in the following cases:

"1. When any executor, heir, legatee, or other person interested in the estate, makes affidavit, showing his interest, and alleging that such interest is, or will be, endangered for want of security.

"2. When, in the opinion of the judge of probate, the estate is likely to be wasted, to the prejudice of any person interested therein." Code, § 5763.

Averments in a sworn bill in equity, substantially in the terms of the statutory affidavit prescribed in subdivision 1, above quoted, are sufficient to present the issue. Cronk v. Cronk, 148 Ala. 337, 342, 42 So. 450; Allen v. Draper, 98 Ala. 590, 13 So. 529.

Subdivision 2 is in the nature of an elaboration or definition of the term "endangered." Is the estate "likely to be wasted to the prejudice of any person interested" is the test of whether such interest is "endangered" for want of security.

The bill before us alleges:

"The complainant, on information and belief, and from the way this estate has been managed as appears from the records, avers that the estate is likely to be wasted to the prejudice of the widow and minor children of decedent, who are the interested persons therein under the will and under the statutes, and the executor should be required by the court to give bond."

Then follow averments that the executor has had possession of the property for two years; had filed no inventory; had rented lands privately, and made no reports as required by law; had set apart no exemptions, etc.

The facts touching the management of the estate being better known to the executor, and accessible to complainant mainly on information, we deem it sufficient to aver on information and belief that the estate was "likely to be wasted to the prejudice" of complainant's interest. The averments of the bill were sufficient. Whether the executor was insolvent, or there was fraud and mismanagement, was a matter of evidence.

The demurrer raised no question of the sufficiency of verification of the bill. We concur in the suggestion of the trial court that the affidavit is not as full or positive as it should be. It should depose on information and belief that the averments of the bill are true, not merely that they "are believed to be true."

When duly verified, the burden is first on the executor to show no necessity for a bond.

No inquiry is made on such hearing as to the quantum of the share of the distributee on final settlement. Sufficient that he is a distributee entitled to share in whatever may remain after payment of debts. Allen v. Draper, 98 Ala. 590, 13 So. 529.

The claim for attorney's fees is set forth in the body of the bill, eighteenth section, in the following words:

"The complainant avers and claims she is entitled to receive reasonable compensation for her solicitor of record for filing this bill and prosecuting this cause for all the purposes therein noted, to be paid to said

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