Cooper's Adm'rs v. Tillman's Adm'r

33 Ala. 332

Opinion

RICE, C. J.—

The general rule is, that expenses, properly incurred by a trustee in the execution of his office as such, are treated as a charge or lien upon the trust estate; and that the trustee is entitled to reimbursement out of the estate, for all such expenses, when he has not only incurred, but has paid them. Conceding that expenses incurred by an administrator, under certain circumstances, and to a certain extent, in employing an attorney, may be treated as “expenses properly incurred by a trustee” within the meaning of the general rule; yet it is clear that a court of law is not the court to enforce such charge or lien, or to compel such reimbursement. In every suit to enforce such charge. or lien, or to compel such reimbursement, an accounting between the estate and trustee is necessary. To allow a court of law to entertain such suit, would be to hold that it had jurisdiction to take and state accounts between the trustee and the estate, and that there may be as many accountings between the trustee and the estate as there are demands created by him for the benefit of the estate. We are persuaded that such is not the law.—See Jones v. Dawson, 19 Ala. Rep. 672; Chapman v. Chapman, 32 Ala. 106; Vincent v. Rogers, at present term; Mulhall v. Williams and Wife, 32 Ala. Rep. 489.

It is clear that the claim asserted by the plaintiff in this case cannot be enforced in a court of law. Whether it can be enforced in the court of probate, or in a court of equity, is a question not here presented for decision.

It is evident that the court below erred, at least, in the charge given, and in the refusal to give the 3d charge asked by the defendants; and without deciding expressly as to the correctness of its other rulings, the judgment must be reversed, and the cause remanded, for the errors above specified.