Holman v. Sims

39 Ala. 709

• Court: Supreme Court of Alabama
• Decided: January 15, 1866
• Status: Published

Opinion

A. J. WALKER, C. J.

An executor fills “a fiduciary relation, which is indispensable in our judicial system; and, in the absence of bad faith, the law does not visit Mm with severer intendments than are indulged against agents generally.” — Henderson v. Simmons, 33 Ala. 291. An executor who institutes a suit in good faith, and on reasonable grounds, is entitled to reimbursement of the costs and expenses of the litigation, notwithstanding his failure of success; provided there does not appear to have been a want of proper diligence.—Taylor v. Kilgore, 33 Ala. 214; Pearson v. Darrington, 32 Ala. 261. Upon this principle, the appellant should have been allowed the costs and expenses incurred in the suit of detinue brought by him against Mary T. Sims. The negro which was the subject of litigation, had been bought and paid for by the appellant’s testator, and remained in his possession, without any established intermission, until his death, and was spoken of and treated by him as bis property. When preparing Ms will, tbe testator was urged by bis wife, (tbe party contesting tbe appellant’s account,) to bequeath tbe negro girl to bis daughter, Mary T. Sims, who afterwards claimed her, and was tbe defendant in tbe detinue suit brought by tbe appellant. Tbe testator not only declined to comply with tbe request, but resisted and replied to tbe arguments made in support of it. After tbe testator’s death, Mary T. Sims declared that she bad prevailed upon her mother (tbe contestant as above stated) to permit tbe appellant to sell tbe negro, for tbe purpose of procuring tbe money necessary to discharge tbe debts of tbe estate, and thus avoiding tbe necessity for tbe sale of tbe land. These facts, and some others of no great importance, were known to tbe executor. There was no fact opposed to these, which we are authorized by tbe evidence to conclude was known to tbe executor, or ascertainable by tbe use of reasonable diligence, except that tbe testator in bis hfe-time repeatedly declared to tbe effect that be bad given the negro to bis daughter, Mary T., who lived with him, and bad said that tbe gift was made in Georgia, whence be emigrated to this State ; and bad on one occasion placed bis refusal to bequeath tbe negro to bis daughter upon tbe ground that a gift bad abeady been made to her. No direct evidence of any written conveyance by tbe father to bis daughter, or of any delivery, appears to have been made, or to have been attainable. After giving a fair statement of tbe facts to an attorney, tbe executor was advised to bring tbe suit. Upon these facts, we can not say that tbe executor bad not reasonable ground for bringing tbe suit, or that be acted in bad faith, or that be was guilty of negligence. We therefore decide, that tbe court erred in not crediting tbe executor with tbe amount of costs and expenses, including bis counsel fees.

There seems to have' been included among tbe credits claimed for expenses incurred in this suit, an item for extraordinary services. We can not ascertain from tbe bib of exceptions what those services were, or what proof was made in reference to them. Therefore, we can not decide whether or not this item of credit claimed ought to have been allowed.

[ 2.] The court refused to allow a credit for costs and expenses incurred, in a suit brought before a justice of the peace, to recover a balance of $6 55 on a note payable to the testator. The executor was unsuccessful in the suit. The note itself afforded reasonable ground for the belief, that a debt was due ; and there does not appear to have been any bad faith, or want of diligence. The executor ought, therefore, to have been reimbursed with the amount of costs paid by him in this case. We can not say the same thing in reference to the attorney’s fee of ten dollars paid by him in the same case. The attorney, who seems to have ridden- ten miles to attend the justice’s court, undoubtedly made a correct and reasonable charge against the executor; but we can find no justification for the employment of a lawyer, at a cost of ten dollars, to attend to a suit, where the amount in controversy was $6 55. Extraordinary cases might arise, where the amount of costs involved without fault of the executor, or the importance of the principle as affecting other cases, was such as to justify the employment of counsel at an expense exceeding the sum in controversy; but this is not a case of that sort.

[3.] The executor was not entitled to the credit of four dollars for attending two days to the case before the justice of the peace. The ordinary attendance to a pending case in favor of an executor does not belong to the class of extras ordinary services, which the statute permits to be specially compensated. — Newberry v. Newberry, 28 Ala. 690.

[4.] The statement of the account on the previous annual settlement was only prima-facie correct. As to those items which are in this opinion rejected, but which were allowed on the previous settlement, we consider the proof such as to justify a reversal of the former order.

If there are any questions presented by the record, which we have not noticed, the principles which we have announced will probably be a sufficient guide to the probate judge in determining them.

Beversed and remanded.