Taylor v. Crook

• Decision Date: 29 June 1901
• Citation: 34 So. 905,136 Ala. 354
• Parties: TAYLOR ET AL. v. CROOK ET AL.
• Court: Alabama Supreme Court

34 So. 905

136 Ala. 354

TAYLOR ET AL. v. CROOK ET AL.

Supreme Court of Alabama

June 29, 1901

Appeal from Chancery Court, Talladega County; J. R. Dowdell Chancellor.

Bill of review by Louisa Taylor and others against James Crook administrator, and another. Demurrer to the bill was sustained, and complainants appeal. Reversed.

The bill in this case was a bill of review, filed by the appellants, some of whom were devisees, and others heirs at law of deceased devisees, under the last will and testament of Edward Gantt, deceased, to review, reverse, and annul a decree of the chancery court rendered March 2, 1895, on the settlement of the accounts of H. P. Heflin, as administrator of John T. Heflin, deceased, of the administration of said John T. Heflin, deceased, as administrator de bonis non of the estate of said Edward Gantt. In said decree sought to be reviewed and annulled, H. P. Heflin, as administrator of the estate of John T. Heflin, deceased, was allowed the sum of $13,608.24 as a fee claimed by said John T. Heflin against the estate of said Gantt for procuring the probate of the will of said Gantt. While the suit in which the decree sought to be reviewed and annulled was pending in the chancery court, John T. Heflin, who had been appointed administrator de bonis non with the will annexed of the estate of Edward Gantt, died, and the suit was revived against James Crook, as administrator de bonis non with the will annexed of Edward Gantt, deceased, and H. P. Heflin, administrator of the estate of John T. Heflin, deceased. The allowance of the fee to H. P. Heflin as administrator of the estate of said John T. Heflin, and the amount of such fee, form the whole basis of the present contention, and are the foundation of the bill of review in the present case. This fee, and the amount thereof as allowed by the register and confirmed by the court, was made up as follows: The sum of $4,000, and interest thereon from April 8, 1872, to September 17, 1887 amounting in interest to $4,720, and aggregating $8,720, and interest on this last amount to September 22, 1895, the time of the settlement of said H. P. Heflin, aggregating $13,608.24. The facts disclosed by the record and set forth in the bill of review are sufficiently stated in the opinion.

The respondents demurred to the bill upon many grounds, among which were the following: (1) For that there is no equity in said bill, as there is no averment contained in the said bill which shows there is an error of law apparent upon the record in the decree rendered March 2, 1895, which is here sought to be reviewed, nor is there any averment of discovery of new testimony since the rendition of the said decree which would entitle the complainants to a bill of review. (2) For that said bill avers that there was a transcript of the procedure of the said administration in the probate court ordered to be filed in chancery court, without setting forth the contents of the said transcript. (3) For that the complainants in said bill seek by said bill to review the allowance of $4,000 attorney's fees to John T. Heflin for services rendered to said estate in probating the will of Edward Gantt, and other advice and services as attorney for said estate rendered prior to his appointment as administrator of said estate, when it is shown by said bill of review that a decree was rendered on October 17, 1883, allowing said attorney's fee, and ordering a reference to ascertain the amount due for said attorney's fee, and that the same was ascertained by the register on a reference held on, to wit the 16th day of September, 1887, and that the same was confirmed by decree of the court on, to wit, the 17th of September, 1887, more than three years before the filing of an application to be allowed to file this said bill of review. (4) For that said bill seeks to set aside the decree of March 2, 1895, which confirms the register's report allowing H. P. Heflin, administrator, on the final settlement of the administration of John T. Heflin, a credit for attorney's fees heretofore allowed John T. Heflin by decree rendered October 8, 1883, ordering a reference to ascertain said fee, and shows also that a reference was held in accordance with said decree on September 16, 1887 allowing said Heflin the sum of, to wit, $4,000, as attorney's fees, with interest, making a total of $9,385 and that the same was confirmed by the court September 17, 1887, and that these complainants in this bill of review had notice, and were actually present in person or by attorney, or their ancestors under whom they claim were present, and that said decree rendered September 17, 1887, has never been set aside, and is still a valid decree in said cause. (5) For that said bill of review seeks to set aside and annul that portion of the decree of March 2, 1895, allowing H. P. Heflin, administrator, on his final settlement of the administration of John T. Heflin in this said cause, the sum of $9,385, with interest from September 17, 1887, the date of its allowance by this court, without setting forth any reason or cause why the said decree should be set aside; but said bill of review shows on its face that the said H. P. Heflin, administrator, should be allowed a credit for this amount shown to be due by the decree of this court to the said John T. Heflin. (6) For that said bill of review seeks to have reviewed rulings of the register and the court upon the objections to testimony of John T. Heflin taken in said cause on, to wit, the 16th day of September, 1887, and upon the 30th day of September, 1886, and refiled on the reference held September 22, 1894. (7) For that it is not shown nor averred by said bill of review that said John T. Heflin was not allowed the sum of $9,385 as attorney's fees for services rendered in said cause on, to wit, the 17th day of September, 1887, but, on the other hand, the said bill of review shows that this sum was allowed by the court, and that it is a just credit on the final settlement of the said H. P. Heflin as administrator of John T. Heflin in this said cause. (8) For that it is shown by said bill of review that the attorney's fees of $4,000 allowed to John T. Heflin for services rendered in this said cause were not allowed in the decree of March 2, 1895, here sought to be reviewed, but were heretofore allowed in the decree of October 8, 1883, and a reference was ordered to ascertain the amount of said fees, and that such reference was held September 16, 1887, and the sum of $4,000, with interest, was allowed as a reasonable attorney's fee by the said register; and that the decree of this court was rendered September 17, 1887, confirming the said report allowing the said attorney's fee, and that said decree was rendered more than three years before the filing of this said bill of review, or an application to file this said bill of review was made, and that the said decree has never been reversed nor set aside, and the said bill of review shows that said decree rendered on September 17, 1887, is the last decree, and the only decree allowing the said attorney's fees here sought to be reviewed. (9) For that complainants failed to point out in the said bill of review any error apparent on the record showing that the court erred in the decree of March 2, 1895, in ordering and decreeing "that the prayer of the petitioners, Louisa Taylor and others, filed March 25, 1894, praying to vacate and annul the decree of this court filed October 5, 1887, which decree confirmed the register's report filed September 16, 1887, be, and the said prayer of the said petitioners is hereby, denied and refused," which portion of said decree of March 2, 1895, is prayed to be set aside and annulled in the prayer of the said bill of review. (10) For that complainants fail to point out in said bill of review any error apparent on the record showing that the court erred in the decree of March 2, 1895, in ordering and decreeing "that the exceptions of the defendants Louisa V. Taylor et al., filed September 25, 1894, to the register's report filed September 22, 1894, are hereby overruled," which portion of said decree of March 2, 1895, is prayed to be set aside and annulled in the prayer of said bill of review. (11) For that complainants fail to point out in said bill of review any error apparent on the record showing that the court erred in the decree of March 2, 1895, in ordering and decreeing "that the exceptions of the defendants Mary Manson and Edward Tandall, Jr., filed September 25 1894, to the register's report filed September 22, 1894, are hereby overruled," which portion of said decree of March 2, 1895, is prayed to be set aside and annulled in the prayer of said bill of review. (12) For that complainants fail to point out in said bill of review any error apparent on the record showing that the court erred in the decree of March 2, 1895, in ordering and decreeing "that the report of the register stating the account of H. P. Heflin, administrator, etc., of John T. Heflin, in final settlement of said John T. Heflin's administration of the estate of Edward Gantt, deceased, said register's report having been filed September 22, 1895, is hereby in all things confirmed, and the account of said John T. Heflin, administrator of Edward Gantt, deceased, as filed March 24, 1881, and stated by said H. P. Heflin, etc., is hereby passed and allowed; and that the said James Crook, administrator of the estate of Edward Gantt, deceased, will, if not at too great a sacrifice, dispose of enough property belonging to his testator's estate in his hands undisposed of, and pay to the said H. P. Heflin, as said administrator, the sum so found due the estate of John T. Heflin, deceased, to wit, the sum of $3,493.81" --which portion of said decree of March...