Hale v. Cox

• Decision Date: 27 February 1941
• Docket Number: 7 Div. 638.
• Citation: 200 So. 772,240 Ala. 622
• Parties: HALE ET AL. v. COX ET AL.
• Court: Alabama Supreme Court

200 So. 772

240 Ala. 622

HALE ET AL. v. COX ET AL.

7 Div. 638.

Supreme Court of Alabama

February 27, 1941

Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.

Suit in equity by Roger C. Suttle, as administrator of the estate of Johnson B. Hale, deceased, and Norma Cox against Della B Hale and others (revived on death of Della Hale in the name of J. B. Hale, as administrator of her estate), wherein there was a reference to the register on final settlement of the accounts of Della Hale, as executrix of the will of Johnson B. Hale, deceased. From a decree overruling exceptions to the report of the register, J. B. Hale, as administrator of the estate of Della Hale, deceased, and others, as heirs, appeal.

Modified and affirmed.

Motley & Motley, of Gadsden, for appellants.

O. R Hood and Roger C. Suttle, both of Gadsden, and Hugh Reed Sr., of Centre, for appellees.

FOSTER Justice.

This case comes now from a final decree of the circuit court, in equity, settling the accounts of Della Hale as executrix of Johnson B. Hale, deceased, acting by her administrator, J. B. Hale, Jr. She died April 24, 1937, after her accounts were filed for final settlement on account of the revocation of her letters testamentary. She was named executrix without bond in an instrument in form the last will and testament of Johnson B. Hale, her husband, who died November 4, 1925, and she had the will probated in the probate court and letters were issued to her November 24, 1925. She was a second wife, and had six children, some of whom were minors. Her deceased husband had another child surviving him, named Norman Cox,--she having married a man of that name. She filed a contest of the will in the circuit court, in equity. The contest was successful, and affirmed on last appeal. That proceeding was in this Court on three appeals. 217 Ala. 46, 114 So. 465; 222 Ala. 136, 131 So. 233; 231 Ala. 22, 163 So. 335. It was also here on another appeal in which she sought a sale of certain property for division. 233 Ala. 573, 173 So. 82.

After the will was successfully contested, letters testamentary to Della Hale were revoked. Roger Suttle was appointed administrator, and on the same day petitioned the circuit court, in equity, for a removal of the administration to that court, and such an order was made on that day. On November 1, 1935, Della Hale filed in the circuit court her petition to set off and assign to her a homestead and dower in the lands. There was a large amount of land and city property. The minors had reached majority, except two, as shown by an amendment to that petition, and it sought to have the homestead assigned to her and the two minors. There is no question of insolvency. On July 7, 1936, the homestead was assigned and allotted to them, but no order was made as to her dower claim.

On October 3, 1936, Della Hale filed a report of her acts and doings as such executrix, with a statement of her accounts and vouchers showing receipts of $47,645.07, and expenditures of $58,620.38. Exceptions were filed to it, and a decree of reference made and a report on that reference. That report was set aside and vacated on March 18, 1937, and a special register appointed and an order of reference was made to him. He was a lawyer and accountant, and made a comprehensive report which was quite complete and explicit. Exceptions were filed to it, and on these exceptions a decree was rendered, from which this appeal was taken. In the meantime Della Hale, the former executrix, died, and an administrator of her estate was appointed, and the cause revived in his name. Thereafter the special register was appointed, and made his report as we have stated. The appeal is by him as administrator of Della Hale's estate and her six children.

Among other things the special register reported as follows:

"Whether through carelessness or otherwise, or whether through lack of knowledge, or according to instructions, it appears from testimony and available information, the affairs of the estate of Johnson B. Hale were handled in such a manner to completely disregard the interest of all parties concerned. Other than the pro rata amounts chargeable to her for monies spent in the upkeep of the estate, and for the building of houses, concerning which she had no voice, Norma Hale Cox did not share in any of the benefits of the estate. So far as is known to the special register, all the personal property of the estate has been spent and there remains only real estate from which Mrs. Cox may be able to balance her distributive share with that of the other heirs who have already received benefits of the estate in amounts distributed to them in liquidation thereof. * * *

"Dower rights of Mrs. Della Hale have not been ascertained. The court did not set aside her dower during her life and the special register, therefore, is of the belief that according to general principles of law, dower rights or interests abate upon the death of the individual entitled to same. Because of this fact, the supplemental order or decree issued June 29, 1939, paragraph K, has not been followed nor has the claim in Mrs. Della Hale's settlement, item 22, been considered. The same is true of the exemption of $1,000.00 mentioned in the said paragraph K, and as was claimed by item 21 in the settlement filed by Mrs. Della Hale. * * *

"The item of attorney's fees has been ignored for two reasons. Primarily, the court did not specifically order the special register to ascertain the correct amount of legal fees, nor how they should be charged against the heirs. However, the question of legal fees would affect the distribution of assets of the estate, if they were taken into consideration and therefore, the special register believes that the question deserves comment here.

"The claim for fees on the part of counsel for Mrs. Della Hale and all the Hale children except Mrs. Norma Cox is a matter which should be determined as between counsel and said parties, and such claim is not a proper claim against the estate of Johnson B. Hale. * * *

"It has been stated that disbursements were not supported by proper vouchers and the total amount is correct so far as the special register has knowledge. Disbursements were handled in an extremely poor manner and the exact amount of same cannot be ascertained. Where it was not possible to determine from the face of the check, or any other information available, for whom the disbursement was made, it was charged to Mrs. Della Hale."

The court overruled all exceptions to the report, except numbers 15 and 21, and made final disposition of the cause. Exception No. 15, which related to the denial of the claim of $1,000 personal property exemption as a disbursement, was sustained by the court, which held that she should be allowed this credit, but further found and held that as the report shows she was properly chargeable with a balance of $6,704.82 on such settlement, said amount would serve only to reduce that figure.

The court also sustained exception No. 21, so as to allow an attorneys' fee to the attorneys of Della Hale in the sum of $1,100 for unsuccessfully resisting the contest of the will. It also allowed them an additional fee of $3,900, but directed that it be charged equally to the shares of the six children of Della Hale, and thereby that no part be chargeable to Norma Cox.

Sustaining those exceptions did not change the final figures, except in so far as the amount of the personal liability of Della Hale was concerned.

The assignments of error are each based upon an exception to the report of the register. The first six of them are to the report as a whole for various reasons assigned. See, also, assignment No. 32. None of them is of substantial merit in our opinion. Questions of law are sometimes so mixed up with the fact to be ascertained that it is not improper for the register to express an opinion of the law as a basis for the particular finding. Sims Chancery Practice, section 594; 19 Amer. Jur. 254, section 370.

A reference is to aid the judge, and he may proceed with or without a reference, or after a reference adopt as much as he sees fit, or set it aside and act on his own judgment. De Moville v. Merchants & Farmers Bank, 237 Ala. 347 (13 and 14), 186 So. 704; Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429; Sims Chancery Practice, section 598.

When the register expresses his judgment on legal questions, and his findings are based on such judgment, the court will weigh his findings on that basis, without necessarily setting aside the entire report. Such report of the register to that extent is of course not entitled to the legal weight that ordinarily attaches to it. O'Rear v. O'Rear, 227 Ala. 403 (11), 150 So. 502; 19 Amer.Jur. 255, section 371; 23 R.C.L. 298, section 18. And in respect to his report on matters not submitted to him, the court may disregard such feature of the report (Abney v. Abney, 182 Ala. 213 [8], 62 So. 64), or use it as an aid to his own judgment. De Moville v. Merchants & Farmers Bank, supra.

On this hearing the court evidently acted on his own interpretation of the law though different in some respects from that stated by the register. There is nothing prejudicial to appellant in pursuing that course, subject to review by this Court as to those legal conclusions.

Assignment No. 14.

Among the items of credit claimed by the executrix was No. 22 "one-third amount received from rent on real estate as her dower interest in said rents and income from land--$7,933.14." It was agreed on the examination of the witnesses that the correct amount should be $6,120, but it was not agreed that she was entitled to any credit on this account. The register reported as we have shown. The court had a...