STONE, C. J. —
John D. Ragland, a resident of Virginia, died April 2, 1872, in Mobile, Ala., leaving a considerable estate and debts in each State. He left a will, which was probated and established in each jurisdiction. The will disposed of the testator’s entire estate, real and personal, and [527]*527appointed B. G. Pegram, of Virginia, to be executor, who, in tbe year 1872, qualified, and took upon bimself tbe trust. Tbe will also Tested in Pegram tbe title to all testator’s real estate, and made bim trustee thereof for the equal benefit of testator’s only surviving heirs at law and devisees, his three daughters, all ■ residents of Virginia. Both the executor, Pegram, and the three daughters have ever since continued to reside in Virginia.
During the same year — 1872—Fred. Hall, a resident of Alabama, was, by the Probate Court of Mobile county, appointed administrator of the said Bagland’s estate with the will annexed, and took upon himself the administration of said estate in Alabama. His administration was limited to personal assets in Alabama, the estate being solvent, and to the payment of Alabama debts; for the will vested the title of all the realty in Pegram as trustee.
On the 10th of March, 1874, Fred. Hall,made a partial settlement of his administration, at which time there was ascertained to be in his hands ten thousand, one hundred dollars, in excess of all the disbursements he had made as administrator. In this settlement commissions were allowed to him on all receipts and disbursements up to that stage of the administration. He made no other partial settlement.
On the 28th day of August, 1886, Fred. Hall made a final settlement of his administration of said estate, and at such settlement nothing was found against him. On the contrary, it was ascertained and decreed, that his ' disbursements exceeded the assets he had received, by the sum of four thousand, two hundred and sixty dollars; and it was decreed that the estate owed him that sum. He thereupon resigned the administration, his resignation was accepted by the court, and an order made discharging him from the trust.
The present bill was filed in November, 1886, by Pegram, the executor, and prays to have corrected certain errors of law and fact, charged to have been committed in Hall’s final settlement, to his own advantage, and to the prejudice of England’s estate. The equity of the bill depends on section 3837 of the Code of 1876, and its proper interpretation. The language of that section is as follows: “Where any error of law or fact has occurred in the settlement of any estate of a decedent, to the injury of any party, without any fault or neglect on his part, such party may correct such error by bill in chancery, within two years after the final settlement thereof.” This statute is found, without change, [528]*528in each of the Codes of 1852, 1867, and 1876. A clause is added to it in the Code of 1886, but it does not affect this case.
In the earlier constructions of this statute, this court was inclined to make it highly remedial and beneficial. — Cowan v. Jones, 27 Ala. 317; Morrow v. Allison, 39 Ala. 70; Meadows v. Edwards, 46 Ala. 354; Monnin v. Beroujon, 51 Ala. 196. But this rule soon gave way to stricter requirements. In Gamble v. Jordan, 54 Ala. 432, a case under the statute we are considering, the principle decided is correctly expressed in the second head-note, as follows: “When the jurisdiction of the Probate Court has attached, its decree on final settlement of an administration can not be vacated or annulled by a resort to equity, unless the complainant shows some equitable ground of relief, whereby, by reason of accident, mistake, or fraud, unmixed with fault on his part, he was prevented from interposing the matters relied on, before decree in the Probate Court.” In the same case it was said: “The .jurisdiction of the court of probate was called into exercise, when the administrator filed his accounts and vouchers for a final settlement, and a day was appointed for the settlement......The decree not being impeached for fraud, and no accident or mistake intervening, preventing the appellees from presenting to the court all the matters on which they now insist as ground for relief, and all of which were involved in it, the decree is a bar.” And in some of the cases which support this proposition, notice of the day set for settlement was given only by publication; and this was held to include infants, for whom guardians ad litem were appointed, as well as adults. Otis v. Dargin, 53 Ala. 178; Waring v. Lewis, Ib. 615; Stabler v. Cook, 57 Ala. 22; Boswell v. Townsend, 57 Ala. 308; Jones v. Fellows, 58 Ala. 343; Bowden v. Perdue, 59 Ala. 107; Same v. Same, Ib. 133; Lowe v. Guice, 69 Ala. 80; Hatcher v. Dillard, 70 Ala. 343; Lyne v. Wann, 72 Ala. 43; Foxworth v. White, Ib. 224; Stoudenmire v. DeBardelaben, Ib. 300; Waldrom v. Waldrom, 76 Ala. 285; Tutwiler v. Lane, 82 Ala. 456; Cawthorn v. Jones, 73 Ala. 82; Massey v. Modawell, Ib. 421; Vincent v. Martin, 79 Ala. 540.
Under our decisions, cited above, my opinion is, that we have in effect declared that the statute we are considering has accomplished no result whatever. This I attempted to show in Bowden v. Perdue, 59 Ala. 409. The interpreta[529]*529tion it bas received at our bands gives to it tbe same scope and extent in correcting errors in judgments, as was done by tbe Chancery Court without tbe statute. — French v. Garner, 7 Por. 549; 1 Brick Dig. 666, § 376; 3 Ib. 347, § 230; Headley v. Bell, 84 Ala. 346.
"While, as shown in Bowden v. Perdue, I would prefer to give to tbe statute a more liberal, remedial interpretation, the construction bas prevailed too long, and bas been asserted too often, to justify a departure from it. We speak, of course, of tbe statute as it existed before it was amended by tbe Code of 1886, § 3536. To what extent that amendment will require changed interpretation, it is not our intention to intimate any opinion at this time.
We have, as our rulings show, given full effect to tbe statutory requirement, that any injury complained of, to be remediable under this statute, must have been suffered “without any fault or neglect” on the part of tbe party complaining. Yet there are cases in which relief bas been granted. If tbe administrator bas made misrepresentations, bas misled or deceived bis beneficiary, and thus thrown him off bis guard, or bas resorted to any artifice, by which be bas intentionally averted scrutiny of bis account, and bas thus obtained an undue advantage in bis settlement, chancery will grant relief, if timely application be made. Chancery relieves against tbe most solemn judgments, if procured by fraud. — Humphreys v. Burleson, 72 Ala. 1; Mock v. Steele, 34 Ala. 198; U. S. v. Throckmorton, 98 U. S. 61.
A summary of tbe facts of this case is necessary to a proper understanding of tbe question we have in band.
During tbe season of 1871 — 2, tbe testator, Bagland, was engaged in purchasing horses and mules at Selma, and shipping them to Mobile by steamboat. Selma is near the center of tbe State, and Mobile on tbe southern border — distant, tbe one place from tbe other, a hundred and fifty miles, or more; more than double that number of miles by water. This is common knowledge. Tbe correspondence of the parties, which is in evidence, shows that Bagland’s purchases in Selma were with a view to a sale in Mobile; that' Hall was bis agent at tbe latter place, and that tbe horses and mules purchased at Selma were shipped to Hall. Bagland drew on Hall to meet tbe purchases be made, and, apparently, to meet some other liabilities. Bagland’s drafts on Hall during tbe season aggregated twelve thousand dollars or more, all of which were paid by Hall.
[530]*530There was a correspondence between Pegram, the executor in Virginia, and Hall, the administrator in Alabama, commencing in 1872, and continuing up to a short time'before Hall’s final settlement in 1886. From that correspondence we derive the following information: Ragland’s estate owed debts to Virginia creditors, in excess of personal assets subject to Pegram’s primary control. Pegram, executing the domiciliary administration, and exercising its rights, claimed that there was an excess of personal assets in Alabama beyond the claims of Alabama creditors; and hence he desired that Hall should turn over to him some part of the Alabama personal assets, to meet the Virginia debts, that he, Pegram, might save from sale and sacrifice real estate in Virginia, which he alleged was very valuable. His requests and appeals in this behalf commenced in 1872, and were repeated in almost every letter, till near the close of the administration. As early as November 18, 1872, in a letter from Pegram to Hall, is this language: “Can you give me an idea when I may look for a remittance from you ? You must not deem me importunate, for, if you had any idea of the extent to which I am annoyed by constant inquiries from creditors, you would acquit me of the charge of being unnecessarily troublesome to you.” And in a letter from same to same, dated June 24, 1878, is the following language: “I would also like to know the present status of your administration upon Ragland’s estate? Have you settled up, or are there still outstanding claims to be paid? and if so, have you the assets to meet them, or will some of the real estate have to be sold to pay debts ?” If this letter was ever answered, it is not shown.
We copy the following extracts from letters written by Hall to Pegram at the several dates:
February 18th, 1873: “I had determined to forward the proceeds of the sale of the stock, together with all the money which I had received, until advised by Judges Jones and Dargan not to do so.”
May 30, 1873: “I would very willingly remit you a portion, or all of the money which I now hold as administrator, in order to quiet the Virginia creditors; but, as I have said before, that I am obliged to retain it until the suits which are now pending will have been decided. There are two suits, one concerning a cotton claim for over five, and another for board for five thousand. I have compromised one for lawyer’s fees for over five hundred dolls. You would be as[531]*531tonished were you to see tbe amount claimed by lawyers for fees and costs of court. It seems that tbe estate of Bag-land will be nearly bankrupt, if it lias to pay all these claims. I bave determined, if compelled to pay these claims, to get them reduced as much as possible. I will do every thing in my power to promote tbe interest of tbe children of Mr. England, and will always act in accordance with advice of Judges Jones and Dargan in all matters relating thereto.”
November 24, 1873: “I can not remit you any funds of tbe estate at present, as I can not tell what claims may be filed against the estate in tbe Probate Court before tbe time allowed by law expires, and tbe suits now pending against tbe estate are decided.” (Tbe eighteen months allowed for filing claims expired December 15, 1873.)
May 29, 1874. “I bave, within a few days, with tbe advice of Judge Jones, compromised a claim of near four thousand dollars, by paying eighteen hundred dollars and tbe costs; and there was a verdict given against tbe estate in our City Court yesterday, for about six thousand dollars; and there are other suits pending, and tbe other claims against tbe estate for a large amount.”
On tbe 13th day of December, 1873' — two days before tbe expiration of tbe eighteen months allowed for filing claims— Hall, tbe administrator, filed a claim in bis own favor, for over twelve thousand dollars. Tbe claim was sworn to by him as being due, and was made up of tbe items of payment be bad made during tbe season 1871-2 on Bagland’s drafts, some written requests, and other alleged oral requests. None of these drafts or requests, or tbe letters which generally accompanied them, furnish any evidence that Bagland was obtaining a loan or accommodation from Hall. They were simply drafts and requests preferred and forwarded, indicating nothing of tbe state of accounts between them, save tbe legal implications which arise, when one man gives a draft on another, and that other accepts and pays it. — 1 Dan. Neg. Instr., § 534.
It is positively testified by Pegram, that be never knew or beard of Hall’s claims described above, until notified of it after it bad been allowed in Hall’s final settlement. And bis testimony is equally explicit, that be bad no knowledge or notice of tbe time set for the settlement. There is no testimony in conflict with bis, and no attempt was made to prove that either Pegram or either of the distributees was present, or represented on tbe final settlement, or that either [532]*532of them bad notice that an account current had been filed for final settlement, or when it would take place.
Other facts bearing on the question we are considering should be noticed. On the 2d February, 1874, Hall filed his account current and vouchers for a partial settlement. On the 14th of the same month he wrote Pegram as follows: “I have filed a petition in Probate .Court for a partial settlement of my accounts as administrator of the estate, and a hearing will be had on the 4th March next.” The hearing was not had on the 4th, but was continued to the 10th. The following is an extract from the decree rendered: “And it appearing to the court, from proper evidence, that due notice of the time and nature of this settlement has been given, by publication for three successive weeks in the Mobile Daily Register, a newspaper published in this county, and that a copy of said paper containing such notice has been sent by mail, postage paid, to Richard G. Pegram, trustee under the will, Annie W. Martin and-- Martin, her husband, Virginia J. McCaw and William McCaw, her husband, and Mary Flora Martin, addressed to them at their several post-offices, as set out in the petition filed with, the accounts; and they being present and represented by William G. Jones, Esq., their attorney,” &c.
At this partial settlement there was a balance found in the hands of the administrator of ten thousand one hundred dollars, over all disbursements, costs and commissions; and although his individual claim against the estate of over twelve thousand dollars had been filed in court near three months before, he did not then claim any credit therefor, nor bring it to the attention of the court.
” The account current for final settlement was filed July 29, 1886, and the settlement was had August 28, next following. No letter was written to Pegram notifying him of this settlement, nor was any paper containing the notice of day set for trial sent to him, or to either of testator’s daughters, his legatees. In fact, neither the executor, nor either of the legatees, is mentioned in any of the proceedings pertaining to this settlement. — Code of 1875, § 2509, subd. 3; Code of 1886, § 2135. The following is an extract from the decree rendered: “And it appearing to the satisfaction of the court, that heretofore, on the 29th day of July, A. D. 1886, the said Fred. Hall filed in this court his account, vouchers, evidences and statements for the final settlement of his administration of said estate; and that pursuant to [533]*533the order of the judge of said court, then made, notice of such settlement was given to all persons interested, by the publication thereof in the Mobile Register, a daily newspaper published in said county, for three successive weeks; and that such notice contained the name of Fred. Hall, the administrator, the name of John D. England, the deceased, the day appointed for the settlement, and the nature thereof, and that the same was to be, as proposed, a final settlement of Fred. Hall, administrator of said estate.” The settlement was thereupon had, in the absence of any one representing the estate, and the said claim of over twelve thousand dollars was allowed to Hall as a credit.
The errors complained of, and which this bill seeks to eliminate from the credit side of the account, are the said claim in favor of Hall of over twelve thousand dollars, an item of five hundred dollars allowed the administrator, as so much paid an accountant for making out the account current, and certain commissions alleged to have been improperly allowed to him.
For appellant, defendant below, it is contended that Pegram and the beneficiaries are, under the circumstances of this case, chargeable with notice of Hall’s claim, or, what is the same thing, with neglect in not finding it out. We will first address ourselves to the inquiry, to what extent the services of the attorney, William G. Jones, must be regarded as a factor in the solution of this question. It is shown that he had died before the final settlement was had.
Mr. Jones, in one of his letters, described himself as attorney for the estate, and the record tends strongly to confirm this. He advised Hall in reference to the administration, and rendered services to him pertaining to the estate. Hall, several times, paid him fees for services rendered the estate, and the payments were allowed as credits in his settlement. On the other hand, the record discloses that Mr. Jones represented Pegram and the legatees, in the partial settlement in 1874. Hall had separate counsel in the person of Mr. E. S. Dargan, whose advice he followed in all cases where the two administrations were, or appeared to be antagonized. Mr. Dargan also died before the final settlement was made. We feel authorized to say that Jones’ retainer and services were in the interest of Eagland’s estate, and of Hall, the administrator. If a case should arise, in which Hall’s personal interest was in antagonism to the es[?]*?tate, Jones’ primary allegiance was due to the estate, to Pegram, the executor, and to the legatees.
Papers were offered by Hall, the defendant, purporting to be depositions of Mary A. Matthews and J. H. Matthews, her husband. These depositions appear to have been taken, subscribed and sworn to, May 28, 1875. No proceedings were then pending in the court, affecting Hall’s claim against the estate. It was about one year and two and a half months after the partial settlement was made, and every step taken in the proceedings was marked by gross irregularity. We need not particularize the irregularities. The chancellor rightly suppressed these so-called depositions.
After this case was put at issue, Hall had J. H. Matthews examined as a witness for him. He then made an application for leave to re-examine him, on other subjects. This application was heard at chambers, many miles from Mobile, where the suit was pending. The chancellor granted the order conditionally; that is, he allowed the deposition to be taken provisionally, but reserved the right to suppress it when it should be offered. He did suppress it, and his ruling in that behalf is assigned as error. It has been too often decided to admit of further debate, that the right to re-examine a witness in chancery is discretionery, and can not be reviewed. — 1 Dan. Ch. Pr. 952, and note; Meyer v. Mitchell, 77 Ala. 312; McDonald v. Jacobs, Ib. 524.
The correspondence of the witness Jones with Pegram gives evidence of painstaking interest in the welfare of the Ragland estate, and not only fails to show that he had notice of Hall’s claim, but convinces us that, if he had.had such notice, he would have informed Pegram of it. The testimony offered with a view of proving such notice, so far as legal and received, fails to convince us of the fact. A large portion of the testimony of Hall was illegal, and was rightly disallowed by the chancellor. — Tisdale v. Maxwell, 58 Ala. 40; Killen v. Lide, 65 Ala. 505; Dismukes v. Tolson, 67 Ala. 386; Wood v. Brewer, 73 Ala. 259; Warten v. Strane, 82 Ala. 311; Miller v. Cannon, 84 Ala. 59.
The tendency of the correspondence found in this record is to show that Hall was furnishing to Pegram the necessary information to keep him well advised of the progress of the administration, and that he was zealously solicitous for the welfare of the beneficiaries. He informed him of the presentation of the important claims against the estate, the litigation which grew out of them, their compromise and settlement, save bis own claim of twelve thousand, seven hundred and twenty dollars. Of this he maintained a profound silence for over twelve years after it was filed. When he made his settlement in 1874, he wrote Pegram of the time set for the settlement, furnished the name and post-office address of the several beneficiaries, and copies of the noace of settlement were mailed to each of them, postage paid! It is so recited in the record. On that settlement, the estate and legatees were represented by counsel, and Hall’s claim was not brought forward. When he filed his account and vouchers for final settlement, the record shows only two names as being mentioned — his own as administrator, and that of Bagland, the decedent. If he furnished the names or residences of the legatees, the record fails to show it; and the recitals in the decree are strongly persuasive to show that they were neither mentioned, nor any attempt made to give them actual notice. They were not present at the settlement, nor was there any one representing either the estate, Pegram, or the legatees. At that settlement, for the first time, the Hall claim — twelve thousand, seven hundred and twenty dollars — was produced as a credit, and allowed.
We have thus presented and established the following facts:
That Hall expressed and manifested a desire to preserve Bagland’s estate for the benefit of his legatees, and, to this end, was willing to turn over to Pegram, for the Yirginia creditors, all the moneys that had come to his hands as administrator in Alabama, but for the fact that large claims had been presented, sued on, or he was notified of them; and that other claims might be presented before the eighteen months expired. He mentioned all claims of respectable size, except his own.
That before making his partial settlement, he gave personal notice to Pegram, the executor, and had notices mailed to the several legatees at their several post-offices.
That at the partial settlement the estate and legatees were represented by counsel, and he did not claim a credit for his large claim, nor even bring it forward.
That he made no attempt to give personal notice of his final settlement, either to Pegram, the executor, or to the legatees, but, so far as the record discloses, did not allude to them in his proceedings.
That in the final settlement, when the estate was not represented, he produced his claim, and had it allowed, [536]*536without any evidence to overcome the intendment that it was groundless; and that up to this time, no one representing Bagland’s estate had actual notice of the claim.
Whether it was intended or not, the facts remain, that Hall gave notice to Pegram of all the larger suits, and of all the larger claims presented, except his own; that he gave no notice of it; that he gave personal notice to Pegram and the legatees of the first, or partial settlement; and that he gave no personal notice of the last, or final settlement, when, with no one representing the estate, he, for the first time, ashed and claimed credit for his own claim. His conduct would naturally mislead those having an interest in the estate, and lull them into less vigilance than would be otherwise exacted of them. It acquits them of fault or neglect, within the meaning of the statute.
Hall, in his letter to Pegram of Sept. 25, 1886, says: “I will certainly correct any errors which may be found in my account.” This was after the final settlement. Opening the settlement under this bill, did not preclude him from establishing his claim by sufficient proof. All we decide is, that to the extent complained of in the bill, complainant is entitled to a re-accounting.
The other item of credit disallowed by the chancellor is the sum of $500 paid Stoutz, the accountant. Looking at the items composing the account, it does not appear complicated or difficult. If there was confusion, it grew out of the loose or negligent manner in which the accounts and papers were kept by the administrator. To the extent labor was cast on the accountant by the carelessness of the administrator, he was entitled to no credit. But it is not every business man -who is competent to prepare an account current, such as is shown in this case, for a settlement. Looking at the account, as it appears in the record, the allowance appears excessive. There should have been an allowance, commensurate with the service required on the hypothesis that the administrator, through his carelessness and inattention, had not rendered it more complicated, than it would have been if properly attended to . — Smyley v. Reese, 53 Ala. 89; Teague v. Corbitt, 57 Ala. 529; Munden v. Bailey, 70 Ala. 63; Clark v. Knox, Ib. 607; Henderson v. Simmons, 33 Ala. 291. This was a proper subject of reference to the register.
We have reserved the question of pleading for the last. Pegram’s being the domiciliary administration, and Hall’s [?]*?only auxiliary, it follows that any excess in Hall’s bands oyer the demands on the Alabama administration was properly payable to Pegram. — Childress v. Bennett, 10 Ala. 751; Eg. Life Asso. Soc. v. Vogel, 76 Ala. 441; Merrill v. Morrissett, 76 Ala. 433. There is no omission of necessary parties in this case.
The bill in this record has exhibits, which are made parts of it. Among them are several letters of Hall to Pegram, giving and withholding the information as to the debts, which we have commented on above. It also contains as exhibits, the accounts current and decrees in each of the settlements, showing the difference in the manner of giving notice of the two settlements. These, taken in connection with the other averments of the bill, make a case for relief under the rules we have declared above. — Minter v. Br. Bank, 23 Ala. 762. The demurrer was rightly overruled.
The decree of the chancellor is in all respects affirmed, save in the single item of five hundred dollars paid the accountant, which the chancellor disallowed in tolo. This court will make and enter the proper decree of reference.
iteversed. and rendered.
STONE, O. J.
[January 22d, 1889.] Since the decision of this cause on a former day of the term, the counsel in the case, in order to avoid the expense of another reference, but without prejudice to the judgment of this court awarding costs on the reversal, and without prejudice to any other rights which appellant may have in the premises, have filed their written admission that the value of Stoutz’s services as accountant is four hundred dollars, and would be so found and reported by the register; and no exceptions being filed to the report, and it not appearing that the sum reported by the register is too large, save in the item of five hundred dollars allowed for the services of said Stoutz, it is ordered and decreed, on motion of counsel for appellee, that the report of the register be so corrected as to show that the sum due from Hall to Pegram is eight thousand, two hundred and forty-six 64-100 dollars ($8,246.64), to bear interest as per the decree of the chancellor and the report of the register; and for such corrected sum the report is confirmed; this in lieu of the sum of eight thousand, six hundred and forty-six 64-100 ($8,646.64) reported by the register. In all other respects, the decree of the chancellor is affirmed. The costs of appeal in this court, and in the court below, stand adjudged against the appellee. All other costs to be paid by appellant.