Prior v. Davis

• Decision Date: 04 February 1896
• Citation: 19 So. 440,109 Ala. 117
• Parties: PRIOR ET AL. v. DAVIS.
• Court: Alabama Supreme Court

19 So. 440

109 Ala. 117

PRIOR ET AL. v. DAVIS.

Supreme Court of Alabama

February 4, 1896

Appeal from probate court, Limestone county; James E. Horton, Judge.

This is an appeal from the proceedings in the probate court of Limestone county, on the final settlement of the administration by the appellee, John H. Davis, who was administrator of the estate of William H. Sykes, deceased. William H. Sykes died in Limestone county, Ala., February 10 1892, and the appellee, John H. Davis, was appointed as administrator on April 4, 1892. The administrator reported the estate insolvent on December 1, 1893; and on May 28 1894, a decree was rendered declaring it insolvent, and directing the administrator to make a settlement. On July 11 1894, the administrator filed his accounts for a final settlement of his administration; and on that settlement, on objections of creditors of William H. Sykes, deceased, to various items of credit contained in the statement filed by the administrator, arose the questions which are here presented for review. These items so objected to were each allowed by the court. There were some objections reserved to the rulings of the court upon the evidence which are made the basis of assignments of error on the present appeal, but as the court, in its opinion, does not review these rulings, it is deemed unnecessary to set out in detail the facts pertaining thereto. After the hearing of all the evidence as to the contest of the various items, the court rendered its decree sustaining them, and it is from this decree the present appeal is prosecuted.

The contest by the creditors was directed to 10 items of credit and, for convenience, each item of credit objected to and allowed, which allowance is assigned as error, is set out seriatim, together with the evidence bearing upon the particular items: First. September 3, 1892, the payment of $250 to J. J. Turrentine. The deceased was a trustee in a general assignment of Lindsay & Co. As such, he collected $250, which he had not paid to the creditors when he died. Appellee paid it to Turrentine for the creditors of Lindsay & Co., out of the funds which the deceased had on hand. The money which deceased had collected as such trustee had not been kept separate from any other, and could not be identified from the other. Second. May 17, 1892, paid Bank of Athens $2,055.55. Prior to his death, deceased had given to the bank a note, which, with interest, on the date of its payment, amounted to that sum. To secure that note, he had delivered to the bank 25 shares of its stock, of the par value of $2,500, with other collaterals. Appellee testified that he and Frost, officers of the bank, sold this stock on May 5, 1892, for $2,500. Frost testified that he, as cashier of the bank, sold the stock, and that appellee had nothing to do with its sale; that he took up the note which he surrendered to appellee, and the account filed by appellee showed that on the 18th day of May, 1895, he charged himself as administrator with the proceeds of such sale, amounting to $2,500. Third. September 10, 1892, paid the Bank of Athens $2,622.22. An agreement of the attorneys found at the back of the record shows that on the 24th day of August, 1891, Sykes made a note to the Bank of Athens for $2,500, and, to secure the same, executed a mortgage on two lots in the town. This note was due on the 6th day of October, 1891. In June, 1893, appellee, as administrator, filed his petition in the probate court to sell these lots for the payment of debts, and on the 29th day of July a decree of sale was rendered. On the 29th day of August, the lots were sold at public outcry, under that decree, and were purchased by one Hagan, as guardian of the minor children of deceased, for $7,000, which was paid. This sale was duly reported to the court on September 10th, and was confirmed, and the appellee directed to make a deed to the guardian. Appellee charged himself up with the proceeds of this sale, and paid to the bank, of it, the amount above stated. Against the objection of appellants, appellee was allowed to prove that there was an agreement between him and the bank and Hagan that Hagan was to bid the full value of the land, and the appellee was to pay the mortgage debt out of it, and that, in making this agreement, appellee acted on the advice of his attorney; that at the time appellee paid the money, defendant had reason to believe that the estate was solvent, and that the price which the real estate brought was the full value of the same unincumbered; that the guardian of the minors had applied to the probate court to invest the sum of money which they had in this property, and the court had made an order permitting him to do so. Fourth. September 20, 1892, paid Mrs. Beasley $578.05. This payment was made on a note made by intestate before his death, to secure which he had deposited with Mrs. Beasley a note for $500 on one Carter as collateral. Appellee paid Mrs. Beasley the money, took up Carter's note, subsequently collected the latter note, and charged himself with the amount on this final settlement. Fifth. September 26, 1892, paid Mrs. Jackson $170.90. This was also a payment of a note executed by intestate, which was secured by the note of Witty & Co., which had been deposited with Mrs. Jackson as collateral. Appellee paid this note, took up the Witty & Co. note, subsequently collected the same, and charged himself up with the amount so collected, which was a good deal in excess of the amount paid. Sixth. May 26, 1890, paid W. B. Russell $7. In support of this payment, it was shown that intestate, at the time of his death, had an interest in certain property in St. Joe, Lauderdale county; that the taxes on that property for the year 1892 were paid by Russell; that the share of intestate was repaid to Russell by the appellee. Seventh. This exception arises out of the allowance of various payments of assessments on a mutual insurance policy issued by the Knights of Honor to one B. P. Harris, in favor of his wife, Mollie. The evidence showed that Harris owed intestate $700; that it was agreed between them that, if intestate would keep up the premiums during the life of Harris, then he was to have the amount of the policy when Harris died; that the wife verbally assented to this agreement; that Harris was living at the time of the assessment, and intestate had, in his lifetime, paid the premiums maturing up to the time of his death; that payments were made to the officers of the lodge. It is also shown that the society had not sanctioned or ratified the change of beneficiaries of the policy, and that, under the rules of the society, the policy could not be transferred to a creditor. Eighth. This head embraces two credits which were allowed,-one upon the payment of state and county taxes for the year 1892, on real estate belonging to the intestate, amounting to $99.75; the other was the payment of taxes to the town of Athens for the same year, amounting to $32.22. The proof showed that the taxes were assessed on this property after the death of the intestate. Ninth. This was an allowance of commissions, amounting to $496.11; these being 2 1/2 per cent. on the receipts as shown by the debit side of the account, and 2 1/2 per cent. on the disbursements which were allowed by the court, including the items hereinabove mentioned as having been objected to. Tenth. This was an allowance of $100 for attorney's fee for representing the appellee in the insolvency proceedings, and making this final settlement. Reversed.

R. A. McClellan, for appellants.

Mr. Tompkins and W. T. Sanders, for appellee.

BRICKELL C.J.

The statutes declare that all the property of a decedent, except as is otherwise provided, is charged with the payment of his debts, and for that purpose may be sold, if necessary. With much of particularity, the order in which the debts are to...