LIGON, J.
On the settlement of the estate of Jesse Bendall, deceased, as appears by a bill of exceptions in this record, the legatees took several exceptions to the ruling of the court in relation to items of the account current of the administrator with the will annexed, as it was stated and allowed by the court. These exceptions we will consider as they are presented by the record.
1. From this it appears, that the administrator presented three receipts as vouchers of expenditure by him for and on account of the estate of his testator, which were objected to by the legatees. As the principle upon which these vouchers stand is the same, we will consider them together. They all relate to a box tomb of marble, lettered and inscribed, which the administrator caused to be erected over the grave of the deceased. The whole expenditure for this purpose amounted to $210 88. This expenditure may well be classed under the head of funeral expenses, and its allowance or disallowance must depend greatly upon the value of the estate, and the desire of the deceased in reference to his interment, if such desire was made known by him before his death; and it would make no difference whether this desire was included in his will, or orally imparted to those around him.
The principal inquiry should be, is the expenditure for this purpose dispropoi tioned to the means of the estate, or injurious to the interests of the creditors and family of the deceased I Whenever it is ascertained that the estate could well afford the expense, without materially affecting its funds, or injuriously affecting the interests of creditors, or of those who are to take and enjoy it after the death of the testator or intestate, there is no impropriety in allowing the administrator a credit for such expenditure.
In this case it is shown, that the estate in the hands of the administrator amounted to nearly eight thousand dollars; that there were but few, and these very inconsiderable, debts existing against the deceased, and neither widow nor children to be provided for. The estate is bequeathed to collateral relations ; and the deceased expressed a desire that his remains should be deposited in a marble vault. Under these circumstances, the administrator might well esteem it his duty to make the expenditure which he has made, and there was no error in allowing him a credit for the sum so expended.
[303]*3032. The two next exceptions refer to the allowance by the court of the sum of $114 67, the amount paid by the administrator to two solicitors, and the register in chancery for fees, in a certain suit in the Chancery Court commenced by the administrator against the legatees of the estate, in which the bill was dismissed by the Chancellor on general demurrer.
The facts disclosed by the record in relation to these items are as follows : The legatees of the estate applied for, and obtained from the Court of Probate, an order for citation to the administrator to show cause why he should not make a partial settlement of his administration. This citation was served on him, but he failed to appear. A second citation was issued, served, and disregarded by the administrator. On the return of the second citation, and failure of the administrator to appear and obey its mandate, the counsel of the legatees applied for and obtained a rule against him to show cause why he should not be attached for contempt. This rule was served upon him, and before final action was had upon it, he filed his bill in chancery, and obtained an injunction restraining all further proceedings in the Orphans’ Court, in reference to the settlement of the estate, until the matters of the bill were heard and determined by the Chancellor. This injunction was granted by a circuit court judge.
The gravamen of the bill was, that the administrator was not prepared to make settlement with the Court of Probate, because he had not yet ascertained who were the parties in interest under the will of Jesse Bendall, deceased, or their places of rosdence, so as to enable him to bring them before the Probate Court in the manner required by the statute; but he admits that he had not used all the diligence which he could have used to accomplish this object. When this bill was filed, he had been in the ofiice of administrator for the term of four years.
It is perfectly apparent from this, that the interest of the estate did not demand the filing of this bill, nor could it advance that of the legatees. We think it clear, that an administrator, in all litigation concerning the estate in his hands the tendency of which is to advance its interest, or to protect it from injury, is entitled to counsel at the expense of such estate. But we are unable to find any warrant in law to grant him this, when he engages in useless, unnecessary, or vexatious litigation [304]*304concerning the estate in his hands, and more especially when such litigation is with those who are lawfully entitled to the funds ho withholds. —9 Ala. R. 900; 8 ib. 286; 7 Barr’s (Penn.) R. 455.
For these reasons, our opinion is, the Probate Court erred in allowing the administrator a credit for any sum on account either of solicitor’s fees or cost in the suit in chancery.
3. The next item in the administrator’s account, to the allowance of which exception was taken in the court below, is the sum of $172 81, commissions paid to B. T. Moore, an attorney at law, for collecting $6884 42 of debts due to the estate from various individuals. The bill of exceptions sets out some proof in relation to this item, but does not state that what is thus set out is all that was offerred in reference to it in the court below. We have repeatedly held, that, when the bill of exceptions does not clearly show error, all fair deductions and inferences will be indulged by this court, in favor of the correctness of the judgment of the inferior court.
Bearing in mind this wise and well settled rule, we will proceed to examine the proof set out in the bill of exceptions, so far as it relates to this assignment of error. The only witness examined in reference to it is B. T. Moore, the attorney to whom the money was paid. He deposes, that he was the law-partner of the administrator; that the notes, amounting to $6884 42, when past due and unpaid, were banded over to him for collection; that suits were regularly instituted on two of them, and the money collected in due course of law; that against three others of the debtors writs were filled up, but the cases were never docketed in court, nor the writs in the hands of the sheriff; that the money in these instances, and in all those in which no process was issued, was paid to him by the debtors, and by him paid over to the administrator, less 5 per cent., the usual collecting fee. The bill of exceptions does not negative the idea, that the fact of placing the notes in the hands of the attorney, while it rendered him responsible for all loss which might result from his negligence or want of skill,. also tended to hasten the payment on the part of the debtors ; for it is notorious, that notes in the hands of an attorney, who threatens to sue upon them, are generally more promptly and readily paid than when they remain in the hands of the creditor. It [305]*305may also be true, that the attorney put himself to both trouble and expense, to see the debtors and make the collections.
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LIGON, J.
On the settlement of the estate of Jesse Bendall, deceased, as appears by a bill of exceptions in this record, the legatees took several exceptions to the ruling of the court in relation to items of the account current of the administrator with the will annexed, as it was stated and allowed by the court. These exceptions we will consider as they are presented by the record.
1. From this it appears, that the administrator presented three receipts as vouchers of expenditure by him for and on account of the estate of his testator, which were objected to by the legatees. As the principle upon which these vouchers stand is the same, we will consider them together. They all relate to a box tomb of marble, lettered and inscribed, which the administrator caused to be erected over the grave of the deceased. The whole expenditure for this purpose amounted to $210 88. This expenditure may well be classed under the head of funeral expenses, and its allowance or disallowance must depend greatly upon the value of the estate, and the desire of the deceased in reference to his interment, if such desire was made known by him before his death; and it would make no difference whether this desire was included in his will, or orally imparted to those around him.
The principal inquiry should be, is the expenditure for this purpose dispropoi tioned to the means of the estate, or injurious to the interests of the creditors and family of the deceased I Whenever it is ascertained that the estate could well afford the expense, without materially affecting its funds, or injuriously affecting the interests of creditors, or of those who are to take and enjoy it after the death of the testator or intestate, there is no impropriety in allowing the administrator a credit for such expenditure.
In this case it is shown, that the estate in the hands of the administrator amounted to nearly eight thousand dollars; that there were but few, and these very inconsiderable, debts existing against the deceased, and neither widow nor children to be provided for. The estate is bequeathed to collateral relations ; and the deceased expressed a desire that his remains should be deposited in a marble vault. Under these circumstances, the administrator might well esteem it his duty to make the expenditure which he has made, and there was no error in allowing him a credit for the sum so expended.
[303]*3032. The two next exceptions refer to the allowance by the court of the sum of $114 67, the amount paid by the administrator to two solicitors, and the register in chancery for fees, in a certain suit in the Chancery Court commenced by the administrator against the legatees of the estate, in which the bill was dismissed by the Chancellor on general demurrer.
The facts disclosed by the record in relation to these items are as follows : The legatees of the estate applied for, and obtained from the Court of Probate, an order for citation to the administrator to show cause why he should not make a partial settlement of his administration. This citation was served on him, but he failed to appear. A second citation was issued, served, and disregarded by the administrator. On the return of the second citation, and failure of the administrator to appear and obey its mandate, the counsel of the legatees applied for and obtained a rule against him to show cause why he should not be attached for contempt. This rule was served upon him, and before final action was had upon it, he filed his bill in chancery, and obtained an injunction restraining all further proceedings in the Orphans’ Court, in reference to the settlement of the estate, until the matters of the bill were heard and determined by the Chancellor. This injunction was granted by a circuit court judge.
The gravamen of the bill was, that the administrator was not prepared to make settlement with the Court of Probate, because he had not yet ascertained who were the parties in interest under the will of Jesse Bendall, deceased, or their places of rosdence, so as to enable him to bring them before the Probate Court in the manner required by the statute; but he admits that he had not used all the diligence which he could have used to accomplish this object. When this bill was filed, he had been in the ofiice of administrator for the term of four years.
It is perfectly apparent from this, that the interest of the estate did not demand the filing of this bill, nor could it advance that of the legatees. We think it clear, that an administrator, in all litigation concerning the estate in his hands the tendency of which is to advance its interest, or to protect it from injury, is entitled to counsel at the expense of such estate. But we are unable to find any warrant in law to grant him this, when he engages in useless, unnecessary, or vexatious litigation [304]*304concerning the estate in his hands, and more especially when such litigation is with those who are lawfully entitled to the funds ho withholds. —9 Ala. R. 900; 8 ib. 286; 7 Barr’s (Penn.) R. 455.
For these reasons, our opinion is, the Probate Court erred in allowing the administrator a credit for any sum on account either of solicitor’s fees or cost in the suit in chancery.
3. The next item in the administrator’s account, to the allowance of which exception was taken in the court below, is the sum of $172 81, commissions paid to B. T. Moore, an attorney at law, for collecting $6884 42 of debts due to the estate from various individuals. The bill of exceptions sets out some proof in relation to this item, but does not state that what is thus set out is all that was offerred in reference to it in the court below. We have repeatedly held, that, when the bill of exceptions does not clearly show error, all fair deductions and inferences will be indulged by this court, in favor of the correctness of the judgment of the inferior court.
Bearing in mind this wise and well settled rule, we will proceed to examine the proof set out in the bill of exceptions, so far as it relates to this assignment of error. The only witness examined in reference to it is B. T. Moore, the attorney to whom the money was paid. He deposes, that he was the law-partner of the administrator; that the notes, amounting to $6884 42, when past due and unpaid, were banded over to him for collection; that suits were regularly instituted on two of them, and the money collected in due course of law; that against three others of the debtors writs were filled up, but the cases were never docketed in court, nor the writs in the hands of the sheriff; that the money in these instances, and in all those in which no process was issued, was paid to him by the debtors, and by him paid over to the administrator, less 5 per cent., the usual collecting fee. The bill of exceptions does not negative the idea, that the fact of placing the notes in the hands of the attorney, while it rendered him responsible for all loss which might result from his negligence or want of skill,. also tended to hasten the payment on the part of the debtors ; for it is notorious, that notes in the hands of an attorney, who threatens to sue upon them, are generally more promptly and readily paid than when they remain in the hands of the creditor. It [305]*305may also be true, that the attorney put himself to both trouble and expense, to see the debtors and make the collections. There is nothing in the bill of exceptions to negative this; and without all the proof upon the subject, wo are unwilling to disturb the judgment of the court below.
The mere fact that the administrator and B. T. Moore were law partners at the time, which is so prominently set out in the bill of exceptions, and in the argument of the attorney for the plaintiff in error, is wholly without weight in considering the propriety of this allowance. We have already decided, upon full consideration, that allowances of this character may well be made to the administrator himself, if he be an attorney, and as such renders necessary legal services to the estate; the judge of the Probate Court deciding upon the propriety and reasonableness of the charges. —Harriss v. Martin, 9 Ala. R. 895. It would seem to follow from this, that there would be no impropriety whatever in tho employment of the law partner of the administrator to render legal services for the estate, and in paying him a just and reasonable compensation for such services when rendered.
For these reasons, we are persuaded, that there is no error in the ruling of the court below in respect to this item of the account prejudicial to the rights of the plaintiffs in error, or of which they can justly complain.
4. On the final settlement of the court below, the administrator procured the services of two attorneys to attend to it on his part, to whom, according to his own statement of the account, be paid $150 each. To this item objection was made by the legatees, and the court reduced it one half.
We cannot say that this was error. Many items of the account, as it was rendered by the administrator, had been assailed by the legatees, and on some of thorn, as we have seen, the exceptions were not well taken. Under chese circumstances, we think, the administrator was entitled to counsel for his own protection in the rightful discharge of the duties of his trust; and in such cases, it is not improper to charge the trust fund with the payment of fair and reasonable fees.
We cannot undertake to lay down a particular rule on this subject, which should govern the’action of primary courts in every case. Much must necessarily be left to the sound dig[306]*306cretion of those courts, both in relation to the necessity for counsel, and the fees which should be allowed to them; and on both these points those courts must look to the circumstances of each case, and decide accordingly. For, while the law delights to protect an honest and faithful trustee, and will shield him from the attempts of beneficiaries to charge him wrongfully, it will not, on tho other hand, allow a faithless one to use the money of the trust to aid him in carrying on an unnecessary and vexatious litigation with the cestui que trust, arising out of his own bad faith in the use and management of the trust fund.—7 Barr 455 ; 1 Strob. Eq. R. 393.
The primary court should also be careful, to see that no greater number of attorneys should be employed than the necessity of the defence of the administrator or other trustee may demand. If several arc employed, and separate fees charged and paid, when the court is satisfied that a less number would have been sufficient, the charge for all who are supernumerary should be disallowed; and an amount which would be a fair compensation for his necessary defence should be allowed to the trustee out of tho trust fund.
5. The next exception is to the commissions allowed to the administrator for the management of the estate. The sum so allowed is five per cent, on the amount of cash which came to his hands.
The rule laid down in the case of Powell v. Powell, 10 Ala. R. 900, in relation to the allowance of commissions to a reasonable extent to executors and administrators, we believe to be the true one, and such allowance should never be refused, t£ except in eases of wilful default, or gross negligence, of which loss to the estate has been the consequence.” Nothing of that kind has been made to appear by this record, or is even insisted upon in argument. The continuances of the settlement, we must suppose, were granted for sufficient reasons ; and the record is silent, in most instances, as to the party applying for them. To grant or refuse them was within the discretion of the court below, and cannot be reviewed by us ; nor can we look to them on the question of wilful default or gross negligence resulting in loss to the estate, for which alone the administrator would forfeit his right to compensation. The sum allowed is that usually given in such cases, and there was no error in making the allowance to him.
[307]*3076. The next exception relates to the refusal of the court to charge the administrator with interest on the funds in his hands.
The record shows, that the administrator, on the day of the final settlement, filed the affidavit required by the statute, (Clay’s Dig. 198 § 28,) the effect of which is to discharge him from the payment of such interest. The plaintiffs in error do not contest the sufficiency of the affidavit made by the administrator ; but it is urged that the court erred in permitting it to be made at the time of the final settlement, as it did not allow them time to inquire into its truth, that they might decide whether they would controvert it.
By the second section of the act of 1848 (Clay’s Dig. 229 § 42), the judges of the Probate Court are required to examine the accounts and vouchers of administrators on the day appointed for settlement, and state the same, when all exceptions may be taken and heard. — Steele v. Knox, 10 Ala. R. 608. It appears to us, that this would also be the proper time for the administrator to discharge himself from accounting for interest, if ho has not used the funds of the estate. The language of the statute above referred to (Clay’s Dig. 198 § 28), that “ in making their return to the court, they shall expressly deny on oath,” &c., is merely directory, and would not prevent .the making of the oath, when the account is made up and stated by the court. If the legatees were taken by surprise by the making of the affidavit, and desired time to examine into the facts, with the view of raising an issue upon it, the court should continue the cause for that purpose. No suggestion of the kind seems to have been made in this case, and no denial was offered at the time the oath was made. Under these circumstances, it was not error for the court to act upon it, and the result of that action is in strict conformity to the requisitions of the statute.
7. The legatees objected to the manner in which the debit side of the account was stated, because no interest seemed to be charged on some items, and on others the principal and interest are so blended together that it is impracticable to separate them, or distinguish between them ; and the account, as stated by the court, is exhibited to establish the facts relied on.
We have already said, that, under the act of 1843, it is the duty of the Probate Court to state the account between the administrator and the estate of which he has charge, at the [308]*308time of the final settlement. The account thus stated is the act of the court, and is the result of evidence furnished by the administrator and the parties in interest who contest the acciu racy of the return of the administrator, or the legal sufficiency of the vouchers and proof presented by him. To enable this court to review the account thus stated by the court, and to decide upon the correctness of its items, it is indispensable that the bill of exceptions should set out the proof which was before the court below with respect to each item, and which controlled its action in respect to them. This is not done in the present record, and in its absence we must presume in favor of the correctness of the judgment below, and in this respect affirm it here.
8. The next and last assignment of error arises out of the final decree of the court below. It appears, that Isaac Bendall, Sally Anderson, and Barbary Jones, three of the legatees under the will of Jesse Bcndall, died before the testator. The court below decided, that the legacies to them had lapsed, and proceeded to distribute them among the heirs at law of the testator, as in case of intestacy.
The language of the will making the bequest to Mrs. Anderson is : “I give to my sister, Sally Anderson, one sixth part of the net proceeds, that is not given away in this will to others, after my sale, to be paid her by my executors hereinafter mentioned, to her and her heirs forever.”
The words “ of my estate,” after the words “ net proceeds,” ■will be supplied by the court, as, from the other clauses of the will, they were evidently intended to bo used by the testator. The legacy of one-sixth part of his estate is given to five other legatees, including Isaac Bendall and Barbary Jones, in the same language used in the bequest to Mrs. Anderson, except that the words “of my estate” are used in'these clauses of the will, and omitted in that which gives the legacy to her.
It is, therefore, too clear to admit of any other construction, that the testator intended the legatees named in his will should take their several bequests in their own absolute right, so that their children have no claim whatever under the will. It is clear, also, that the specific legacies to the three legatees, who died before the testator, became lapsed legacies ; and the general rule in such cases is, that if the will contain a general resid[309]*309uary clause, which is the case here, the specific legacies which have lapsed fall into the residuum, and pass to the residuary legatees.
But in the present caso, we are met by this difficulty: the same persons who arc the specific legatees, are also the residuary ones, and are each entitled to one sixth of such residuum.
The rule is well settled, that where one of several residuary legatees, who are to take in common, dies before the testator, his portion does not survive to his co-legatees, but goes to the next of kin according to the statute of distribution. —1 Roper on Legacies, 340; Peat v. Chapman, 1 Vesey, Sr., 541; Bagwell v. Dry, 1 Pr. Wms. 700; Owen v. Owen, 1 Atk. 494.
The case of Page v. Page, 2 Pr. Wms. 488, is nearly identical with the present. There the bequest of the residue of the personal estate was to six persons, to each of them a sixth part; one of them died before the testator. The Lord Chancellor said, “ This is a lapsed legacy as to one sixth, and undisposed of by the will, the residuary legatees being tenants in common, and not joint tenants; and, therefore, the legacy shall not survive, but go to the testator’s next of kin, according to the statute of distribution.”
This case has been constantly followed in the English courts, except in the case of Hunt v. Barkly, in which Sir Joseph Jekyll, Master of the Rolls, held differently. But this latter case is cited and repudiated by the Lord Chancellor in Owen v. Owen, supra.
We think, therefore, the court below did not err in disposing of the legacies of Isaac Bendall, Sally Anderson, and Barbary Jones, as lapsed legacies to which the next of kin were entitled under the statute of distribution.
For the errors heretofore pointed out, the decree must be reversed, and the cause remanded.