Kenan v. Graham

• Decision Date: 05 February 1903
• Citation: 33 So. 699,135 Ala. 585
• Parties: KENAN ET AL. v. GRAHAM.
• Court: Alabama Supreme Court

33 So. 699

135 Ala. 585

KENAN ET AL. v. GRAHAM.

Supreme Court of Alabama

February 5, 1903

Appeal from probate court, Dallas county; P. G. Wood, Judge.

Judicial settlement of the estate of Mrs. M. L. Kenan, deceased. From a decree of final settlement of the accounts of James K Graham as executor, William K. Kenan and others, as legatees under the will, appeal. Reversed.

Upon the hearing several witnesses were allowed to testify that a fair and reasonable compensation to the executor for his services would be 10 per cent. on the larger side of his account ($90,000), and one that a fair and reasonable compensation would be $10,000. To this evidence objection was made by the legatees, the objection overruled, and exceptions taken.

Pettus Jeffries & Partridge, for appellants.

Mallory & Mallory and A. D. Pitts, for appellee.

HARALSON J.

On the 6th July, 1891, Mrs. M. L. Kenan duly executed her last will in which she appointed Chauncey and James K. Graham her executors, relieving them as such, from giving bond. This will was duly probated on the 12th August, 1892. Both the persons named were appointed executors, and Chauncey died December 1, 1893, leaving James K. as sole executor, who practically administered the entire estate under the will.

The inventory of the personal property showed that it consisted of stocks in different companies and banks, money, notes household goods and silverware, amounting, at their face value, to $50,131.45, appraised at $75,363.45; and real estate of the value of $7,545, together amounting to $82,908.45.

By the will, the testatrix bequeathed her stocks to certain legatees whom she named, and, by codicil dated November 9, 1891, she also made disposition of her household goods, silverware, etc. In this codicil she provided, "Should there be a residue of my estate remaining, let it be divided pro rata among the heirs resident in the state of Alabama, that is after paying Mr. Chauncey Graham and Jas. K. Graham, liberally for their care and attention in the settlement of my estate."

The debts of the estate were very small, amounting to but a few hundred dollars, which were paid by the executors within a short time after their qualification. The household goods, etc., mentioned in the codicil, were soon delivered to the parties to whom they were given, amounting in value to $1,224.19.

In the year 1894 the executor delivered to the parties entitled, stocks amounting in value to $37,682, which, with the household goods, etc., which had been delivered, amounted in value to $38,906.19. These stocks were valued and delivered, as worth,--owing to the companies they were in,--from 25 to 57 per cent. premium on their face value.

In the years 1894 and 1895 the executor paid money legacies amounting to $18,500,--those paid in 1894 amounting to $16,000, and those in 1895 to $2,500. The stocks which were distributed yielded dividends, and, until delivered, these dividends were collected by the executor, and paid pro rata to the parties entitled to the stocks bequeathed to them.

Some of the stocks were not disposed of by the will, and these were sold at a price the fairness of which is not questioned. The proceeds of such sales, and the sales of the real estate, and collections from all sources, as shown by the account of the executor for final settlement, amounted to $53,547.92; and he had left, after disbursements, including commissions to himself, attorney's fees, costs, etc., the sum of $16,315.80 for distribution.

The executors were among the residuary legatees. There was never any partial settlements of the administration offered to be made. The accounts and vouchers were filed for a final settlement, on the 13th August, 1900, and the 27th September of that year was fixed by the court for the settlement, but the same was continued from time to time until the 20th day of May, 1901, on which day the decree of the court appealed from was rendered.

It must be further stated, for the understanding of one of the questions raised on appeal, that on the 24th February, 1892, the testatrix added another and second codicil to her will, by which she made disposition of her household effects,--which effects she had not theretofore disposed of,--to parties therein named, all being persons named in her will and its first codicil, except Emma Kenan, to whom she gave her table linen. The words of this bequest were simply, "Table linen to Emma Kenan, Will's wife." Emma was the wife of W. K. Kenan, one of the legatees under the will, and resided with her husband in Geneva county, Ala.

There appear to be three questions raised on the appeal, around which all others are grouped, (1) Was Emma Kenan one of the residuary legatees under said will, and did the court err in decreeing she was not, and was not entitled to share in the residuum of the estate? (2) Should the executor have been charged with interest on funds of the estate in his hand, and, if so, on what part thereof and for what time; and did the court err in overruling the motion to charge him with interest on certain funds of the estate? (3) Did the court err in the allowance made to the executor as compensation for administering the estate?

1. The original will of testatrix did no more than make bequests to certain persons therein named, and appoint her executors. It contained no residuary clause. On the 9th of November, 1891, as stated, she executed the first codicil to it, in which, on account of the death of one of her legatees, she made a change of that particular bequest, and gave it, and another sum added thereto, to another party. This codicil contains the only residuary clause to the will, which is set out above.

In Graham v. De Yampert, 106 Ala. 279, 17 So. 355, the word "heirs," as herein used, when taken with reference to the context, and the evident intention of the testatrix, was construed to mean, legatees resident in Alabama. W. K. Kenan, husband of Emma, was one of the legatees, with others named in the will, who resided in this state, and Emma had not, either in the will or its first codicil, been anywhere mentioned. She was not a niece of testatrix and bore no relation to her, except that she was the wife of one of her legatees who was connected with her. Coming on to make a disposition of a few personal articles, not before bequeathed, and of comparatively small value, she gave them to her legatees whom she had theretofore named in her will; and going outside of these, gave her linen to Emma. This gift was of small value, and it is inconceivable that testatrix intended thereby to make her a residuary legatee, with her Alabama legatees, to take with them a pro rata share of the residuum of her estate. All the circumstances, as well as the will itself and its first codicils, exclude that idea. She did not belong to the class of residuary legatees referred to in the residuary clause, found for the first and only time in the first codicil. That clause, as is manifest, had reference alone to persons who were her Alabama legatees at the time she executed said first codicil.

2. The executor, as stated, qualified in August, 1892, and filed his accounts and vouchers for a final settlement in August, 1900 about eight years after his qualification, without, in the meantime, having made any annual settlement. Such delay, without explanation to justify it, would, ordinarily, be unreasonable. Whether so or not in this case, must be determined by the particular circumstances and facts of the case. It appears the executor did not, during this time, keep the entire estate in his hands. The estate consisted principally of stocks in dividend paying incorporated institutions, worth largely more than their face value; of notes, money, household goods and other personal assets, all amounting, at their appraised value, to $75,363.45; and real estate, in the city of Selma, amounting as valued, to $7,545. This real estate was city property and rent-producing. The executor collected the dividends on the stocks bequeathed, for the benefit of those entitled to them; divided the personal articles bequeathed to those to whom they were given, and kept the real estate rented, covering the rents into the assets of the estate to be divided. That it was well rented, is not questioned. All this was done in a manner, and within a time, about which there is no complaint raised against him. He did not sell the real estate, as appears until April, 1900,--although he had procured orders for its sale long theretofore. It brought $12,945, amounting to $5,900 more than valued in 1892. The excuse he made for not selling it was, that at the time it should have been regularly sold, such...