Foster v. Foster

• Decision Date: 30 May 1900
• Citation: 28 So. 624,126 Ala. 257
• Parties: FOSTER ET AL. v. FOSTER.
• Court: Alabama Supreme Court

28 So. 624

126 Ala. 257

FOSTER ET AL. v. FOSTER.

Supreme Court of Alabama

May 30, 1900

Appeal from chancery court, Marshall county; W. H. Simpson, Judge.

Suit by Amalthia C. Foster against Marcus L. Foster and others. From a decree in favor of complainant, defendants appeal. Reversed in part.

The facts of this case, so far as are necessary for an understanding of the decision on the present appeal, are sufficiently stated in the opinion. The appeal is prosecuted from a decree of the court directing the distribution of the decedent's estate according to the terms of agreement entered into between the parties to the litigation, and overruling the exceptions to the last report of the register and ordering payment of complainant's solicitor's fees out of the general funds in the hands of the executors.

O. D Street, for appellants.

Lusk &amp Bell, for appellee.

SHARPE J.

This suit was brought by appellee, who is a devisee and legatee under the will of Ira R. Foster, deceased, against the executors of the will, who are also devisees and legatees and also against others alleged to be likewise interested seeking to remove the administration from the probate into the chancery court, and to have the estate there settled and distributed. Excepting three, who disclaimed all interest the defendants each by demurrer and answer resisted the bill and the proposed removal of the administration. The demurrers were overruled, and on a reference the executors' accounts for final settlement were stated before the register, who reported his findings, which, upon several contested items, were against the executors, resulting in an increase of the fund to be distributed over that shown by the voluntary statement of accounts. In that report the register stated that it was agreed by counsel "that the chancellor is to re-refer the matter to the register to ascertain and report in vacation the amount of solicitor's fees to be allowed the complainant and the executors, and to make and state an account between the executors and the several distributees for the purpose of a distribution of the estate." At the fall term, 1898, this report was confirmed, and it was ordered that the register should ascertain and report in vacation, among other things, what amount, if any, should be allowed to the solicitors of complainant for services rendered in the cause. After proof taken upon this reference, the register made a report in vacation, stating, among other matters, the amount of complainant's solicitor's fees, and the record shows that on the same day the cause was submitted for final decree on the bill, the orders of reference and the two reports thereunder, together with a written agreement of compromise made by counsel in behalf of the respective parties, defining the interest each should have in the estate after payment of all debts, and the costs and expenses of suit. The writing closes with the following clause: "It is further agreed that this instrument be filed in court as the solemn...