Mitchell v. Parker
| Decision Date | 23 November 1933 |
| Docket Number | 2 Div. 34. |
| Citation | 151 So. 842,227 Ala. 676 |
| Parties | MITCHELL v. PARKER. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 18, 1934.
Appeal from Probate Court, Sumpter County; P. B. Jarman, Judge.
Proceeding on final settlement of J. A. Mitchell, as administrator ad colligendum of the estate of Agnes S. Parker, deceased, and objections by R. S. Parker. From a decree sustaining objections to certain items in the account, the administrator appeals.
Corrected and affirmed.
J. F Aldridge, of Eutaw, and Stokely, Scrivner, Dominick & Smith of Birmingham, for appellant.
Jenkins Jackson and Patton & Patton, all of Livingston, for appellee.
Appellant was named as executor in what purported to be the will of Agnes S. Parker, who died in November, 1930, leaving a substantial estate. He propounded the will for probate and in due time a contest was filed. He then applied for letters ad colligendum, which were issued to him upon the execution of a bond. The contest resulted against proponent, and was affirmed by this court. Mitchell v. Parker, 224 Ala 149, 138 So. 832. He thereupon filed his accounts and vouchers for final settlement as such administrator ad colligendum. The court of probate allowed some of his claims for credit and disallowed others. He appealed to this court. His chief complaint is in the disallowance of counsel fees and court costs incurred and paid by him in the unsuccessful effort to probate the will.
Such special administrator must find his authority in the law which governs his situation and in the orders of the probate court. He is the agent or officer of the probate court. Flora v. Mennice, 12 Ala. 836. His authority as defined by section 5749, Code, is to collect and receive goods, chattels, and debts due the estate, secure and preserve them at such expense as may be deemed reasonable by the probate court. He has no authority to pay debts nor receive the presentation of claims. Erwin v. Branch Bank, 14 Ala. 307.
It is the duty of a special administrator to make final settlement and pay such fees to attorneys as are reasonable in the collection of the goods, chattels, and debts of deceased, and their preservation, and such as are found by the court reasonably proper in respect to the performance of his duties. He is also entitled to commissions. Wright v. Wilkerson, 41 Ala. 267.
It has been held that any proper cost or expense incurred by a trustee is a charge in his favor on the estate in his hands. Taylor v. Crook, 136 Ala. 354, 373, 34 So. 905, 96 Am. St. Rep. 26; Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590.
If the expense of an unsuccessful effort is such that it is a proper charge against the estate, its payment by the administrator ad colligendum is not the payment of a debt in such sort as he is prohibited from doing. When he makes his final settlement, he is due to have allowed such credit as is equitably due him. Why pay it to the administrator in chief, and then make claim for it if it is a proper charge and payable out of funds in his hands? The answer is found in the principle that the probate court administers such matters on equitable principles. McNeill v. McNeill, 36 Ala. 109, 76 Am. Dec. 320.
If the person named as executor acts in good faith in propounding the will for probate and in prosecuting it to a conclusion though a contest is filed, and though he is unsuccessful in his effort, and probate of the will is not effected, he may be allowed his reasonable expense in such contest unless the court in its sound judicial discretion based upon the circumstances of the case, finds that it would be inequitable and unjust to allow it out of the estate. We think the best rule would be to impute good faith in the absence of a showing to the contrary. We also think that prima facie the person named as executor has the duty to prosecute the petition to probate against a contest. But that under some circumstances it may be unjust to require such expense to be paid out of the estate. We do not here undertake to lay down any definite rule in this respect, further than what we have here stated. The subject has been often...
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Ex parte Kelly
...he has nothing to do with the administration of the estate, as contemplated by sections 2519 and 2520." In Mitchell v. Parker, 227 Ala. 676, 151 So. 842, 843, the court said: "Special" administrators must their authority in the law which governs his situation and in the orders of the probat......
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Penney v. Pritchard & McCall
...by a special administrator who successfully contested a will. Stanley v. Beck, 242 Ala. 574, 7 So.2d 276. See, also, Mitchell v. Parker, 227 Ala. 676, 151 So. 842. Referring now to the status of the law in Alabama before the enactment of what is now section 63, Title 46, Code. In the case o......
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Ex parte Pettus
...only in the statute authorizing the appointment and in the orders of the probate court. Code 1940, Tit. 61, § 90; Mitchell v. Parker, 227 Ala. 676, 151 So. 842, 843. It necessary to note the jurisdiction and power found in the statutes as to the probate of wills and contests thereof and as ......
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King v. Keith, 2 Div. 292
...care and prudence with respect to expenditures. Henry v. Henry, 103 Ala. 582, 15 So. 916; Clark v. Knox, 70 Ala. 607; Mitchell v. Parker, 227 Ala. 676, 151 So. 842. But adherence to the axiomatic precept would not deny appellee his just compensation for the valuable services rendered during......