Stumpf v. Wiles

• Decision Date: 10 February 1938
• Docket Number: 8 Div. 838
• Citation: 179 So. 201,235 Ala. 317
• Parties: STUMPF v. WILES.
• Court: Alabama Supreme Court

179 So. 201

235 Ala. 317

STUMPF v. WILES.

8 Div. 838

Supreme Court of Alabama

February 10, 1938

Appeal from Circuit Court, Limestone County; A.A. Griffith, Judge.

Petition of Rowena Stumpf, heir and distributee, against J.W. Wiles as administrator of the estate of Esther Galbreath, deceased for removal of administration to equity court and for final settlement. From a decree overruling objections to the report of the register on final settlement and confirming the report, the petitioner appeals.

Affirmed.

J.D Brown and R.B. Patton, both of Athens, for appellant.

McEniry & McEniry, of Bessemer, for appellee.

THOMAS Justice.

The matters presented for review are the overruling of objections filed to the register's report and the rendition of final decree pursuant thereto.

The report of the register is rested upon oral evidence before that official. The rule that obtains as to such finding on appeal is stated in Bidwell v. Johnson, 195 Ala. 547, 70 So. 685; Garrett et al. v. Snowden, 226 Ala. 30, 145 So. 493, 87 A.L.R. 216; that is, such finding is accorded the weight of a verdict of a jury, and will not be disturbed unless the court, on review, is convinced that it is palpably and plainly wrong. Ex parte Harris, 228 ala. 88, 152 So. 449; Patterson v. Lovelady, 233 Ala. 554, 172 So. 646; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502.

Subject to the general requirements of good faith and reasonable prudence, the personal representative may employ an attorney for advice and representation in legal matters and advice in management of an estate or trust funds--in performance of legal services which the personal representative cannot undertake--and may pay for and be allowed credit for such reasonable attorney's fees on settlement of the estate. Frazer, as Guardian, etc., v. First National Bank of Mobile, Ala.Sup., 178 So. 441; Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450; Dent v. Foy, 214 Ala. 243, 107 So. 210; Brake v. Graham, 214 Ala. 10, 106 So. 188. In such matters the court may fix compensation in such sum as it deems just and right under controverted facts as to the services rendered by attorneys.

It is further declared that previous settlements of administrator and decrees thereon are presumed to be correct under the statute that obtains. The onus of showing error is on one with an interest in first settlement to overcome the presumption of veracity. Code, § 5918; Dickie v. Dickie, 80 Ala. 57; Eubank v. Clark, 78 Ala. 73; Black v. Morgan, 227 Ala. 327, 149 So. 845; Walsh v. Walsh 231 Ala. 305, 164, So. 822.

It is further established that a personal representative has the right to deposit funds in a representative capacity in a bank of good reputation, and in so exercising a reasonable judgment in that behalf is not responsible for its loss by failure of the bank. Walsh v. Walsh, 231 Ala. 305, 164 So. 822; King v. Porter, 230 Ala. 112, 160 So. 101.

The record shows that the attorneys for administrator made partial settlements; that the administrator had to resist motions for removal and a claim for $5,000 against the estate; that the administrator collected and distributed about $11,275.24; and that the settlement was held open for collection of mortgage and ascertainment of distributees. The sums allowed the administrator were within the amount fixed by the statute. Code, § 5923.

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