B. F. SAFFOLD, J.
The appellants are the legatees, and the appellees the executors, of, the will of John W. Raines, who died in Barbour county, in 1858. The will was admitted to probate on the 3d of January, 1859, after a fierce contest by the heirs-at-law of the decedent. The appellants sought, by this suit, to have a settlement of the administration, an account of the trust funds, and decrees in their favor for whatever amounts should be found due to them. The court granted the relief prayed for, and heard the cause on its merits. The bill was dismissed, on the ground that the defendants had properly accounted for their administration in the probate court, and, without executing any of the trusts, had paid to a duly appointed guardian of the appellants a sum of money equal to, or greater than, the amounts found to be due to them by the report of the register. Error is alleged, both in the confirmation of the report, and the dismissal of the bill.
The will first directs the payment of all the testator’s debts. To this end, and the disposition made of the property, it empowers the executors, as such, to sell the entire estate, real and personal, at either public or private sale, and on such terms as they may deem most advisable. The complainants and their mother, who were the testator’s slaves, were bequeathed to the executors, in trust, to provide for their remaining in Alabama free, if practicable; and, if not, to send them to one of the free States of the Union. After such disposition of them, a bequest in trust to the' executors, of the whole estate, for the benefit of the children, was to take effect. The executors were empowered to appoint a trustee for these legatees, who should secure for them comfortable maintenance and education, and [241]*241provide for the safety and proper management of their property, and its final settlement upon them, protected from the marital rights of husbands. Should the appointment of this trustee be found impracticable, the said executors were to have a proper guardian or trustee appointed, by application to some court of competent jurisdiction in the State where they should settle. This guardian or trustee was to be invested with the same powers as if he had been appointed by. contract with the executors. The executors were authorized to appropriate from the proceeds of the sale of the propert}"- whatever sum should be necessary to carry out the provisions of the will. The appellees were appointed executors.
The estate was sold in 1859, and about $75,000 was realized. No áttempt was made to carry the beneficiaries beyond the State, or to procure permission for them to remain in Alabama, as free persons. The mother of the complainants was sent on a visit to Ohio; but, on her return, she-objected to being removed from this State. The war came on directlyy and-put an end, for the time, to any project for their removal or emancipation. They became free, as a result of the war, with perfect right to remain here.
On the 14th of May, 1860, an annual settlement was made by the executors, from which it appears that there remained in their hands, subject to distribution, about $25,000. On the reference to the register, this settlement was assailed by the complainants only in respect to an allowance of $20,000 paid to the heirs-at-law of the testator in compromise and abandonment of their contest. A credit of $16,000 for counsel fees was objected to-in the bill, but the objection is abandoned. The probate court allowed the executors $7,561, as commissions and extra compensation. This was in addition to $1,000 each, granted by the will. This item was also contested before the register. The above balance of $25,000 was divided between themselves by the executors, they proposing between themselves to be responsible each for the share he received.
The consideration of the cause will be rendered more plain and simple by treating now of the above exceptions. Money paid in compromise of a contest respecting the validity of a will, is not a proper charge upon the estate, against the heirs. Generally, an executor is not bound to become a party to such an issue, unless those interested will indemnify him against the cost of the investigation. His duty is performed, when, in good faith, and without reasonable grounds for doubting its validity, he propounds a paper purporting to be the will of the decedent. The costs and expenses of this should be charged against the estate. The parties to the issue, as they litigate for themselves, and not for the estate, are chargeable with the [242]*242costs of an issue devisavit vel non. The test is, whether the issue is individual or representative. The executor is entitled to costs, when he acts out of regard for the interests of those eventually found to be entitled to the property. On settlement with the beneficiaries, they may ]oe decreed to pay the executor who compromised to establish the will. These propositions are legitimately drawn from the decisions in Koppenhafer v. Isaacs, 7 Watts, 170; Geddis’s Appeal, 9 Watts, 284; Rogers’s Appeal, 1 Harris (Penn.), 569; Scott’s Estate, 9 Watts & Serg. 98; Bradford v. Boudinot, 3 Wash. Cir. Ct. 122.
In Scott's Estate, supra, the testator’s will ordered that “ the remainder of his real and personal estate be applied to the education of poor children of all denominations to read the Bible, the best of all books.” The executors were empowered “ to sell the real and personal property, and apply the same to the use above mentioned.” The validity of the will was assailed, and the executor made an agreement with his counsel, by which he was to have one fourth of the estate, if the will was established, and nothing if it was defeated. He succeeded, and the amount was paid to him. Afterwards, on settlement of the executor’s account, this item was objected to. The proof showed that the services of the counsel could not have been obtained upon more favorable terms, if his fee was contingent. The court said: “ The executor litigated, not for his own interest, but for the interest of the party who got the whole estate by the litigation, and now refuses to reimburse him his expenses. Devisees might just as reasonably object to allow him the costs of an ejectment for recovering their land. The case is too plain for argument.”
The proof in the present case shows, that the appellant legatees were in imminent danger of losing the probate of the will, and, with it, their freedom. In addition to a strongly aggressive public sentiment against the provisions of the will, the testator was suffering from apoplexy, and the testimony was very contradictory in respect to his mental capacity. The facts and the authorities cited establish the correctness of the credits for the compromise and services of the counsel.
2. The testator bequeathed to each of the executors $1,000, “ as a compensation for their services in executing the provisions ” of the will. This compensation was altogether inadequate. We can hardly suppose that he meant what he said. By making it a bequest, it would scarcely be a strained construction, that he intended it as a gratuity, or acknowledgment of the service they would render him in executing his will. He would not have had his will fail of execution because of the meagre compensation allowed. However this may be, he [243]*243authorized the executors to appropriate “whatever sum” should be necessary to carry out the will. He did not mean by this, that the sums should, in every instance, be paid to other persons than themselves.
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B. F. SAFFOLD, J.
The appellants are the legatees, and the appellees the executors, of, the will of John W. Raines, who died in Barbour county, in 1858. The will was admitted to probate on the 3d of January, 1859, after a fierce contest by the heirs-at-law of the decedent. The appellants sought, by this suit, to have a settlement of the administration, an account of the trust funds, and decrees in their favor for whatever amounts should be found due to them. The court granted the relief prayed for, and heard the cause on its merits. The bill was dismissed, on the ground that the defendants had properly accounted for their administration in the probate court, and, without executing any of the trusts, had paid to a duly appointed guardian of the appellants a sum of money equal to, or greater than, the amounts found to be due to them by the report of the register. Error is alleged, both in the confirmation of the report, and the dismissal of the bill.
The will first directs the payment of all the testator’s debts. To this end, and the disposition made of the property, it empowers the executors, as such, to sell the entire estate, real and personal, at either public or private sale, and on such terms as they may deem most advisable. The complainants and their mother, who were the testator’s slaves, were bequeathed to the executors, in trust, to provide for their remaining in Alabama free, if practicable; and, if not, to send them to one of the free States of the Union. After such disposition of them, a bequest in trust to the' executors, of the whole estate, for the benefit of the children, was to take effect. The executors were empowered to appoint a trustee for these legatees, who should secure for them comfortable maintenance and education, and [241]*241provide for the safety and proper management of their property, and its final settlement upon them, protected from the marital rights of husbands. Should the appointment of this trustee be found impracticable, the said executors were to have a proper guardian or trustee appointed, by application to some court of competent jurisdiction in the State where they should settle. This guardian or trustee was to be invested with the same powers as if he had been appointed by. contract with the executors. The executors were authorized to appropriate from the proceeds of the sale of the propert}"- whatever sum should be necessary to carry out the provisions of the will. The appellees were appointed executors.
The estate was sold in 1859, and about $75,000 was realized. No áttempt was made to carry the beneficiaries beyond the State, or to procure permission for them to remain in Alabama, as free persons. The mother of the complainants was sent on a visit to Ohio; but, on her return, she-objected to being removed from this State. The war came on directlyy and-put an end, for the time, to any project for their removal or emancipation. They became free, as a result of the war, with perfect right to remain here.
On the 14th of May, 1860, an annual settlement was made by the executors, from which it appears that there remained in their hands, subject to distribution, about $25,000. On the reference to the register, this settlement was assailed by the complainants only in respect to an allowance of $20,000 paid to the heirs-at-law of the testator in compromise and abandonment of their contest. A credit of $16,000 for counsel fees was objected to-in the bill, but the objection is abandoned. The probate court allowed the executors $7,561, as commissions and extra compensation. This was in addition to $1,000 each, granted by the will. This item was also contested before the register. The above balance of $25,000 was divided between themselves by the executors, they proposing between themselves to be responsible each for the share he received.
The consideration of the cause will be rendered more plain and simple by treating now of the above exceptions. Money paid in compromise of a contest respecting the validity of a will, is not a proper charge upon the estate, against the heirs. Generally, an executor is not bound to become a party to such an issue, unless those interested will indemnify him against the cost of the investigation. His duty is performed, when, in good faith, and without reasonable grounds for doubting its validity, he propounds a paper purporting to be the will of the decedent. The costs and expenses of this should be charged against the estate. The parties to the issue, as they litigate for themselves, and not for the estate, are chargeable with the [242]*242costs of an issue devisavit vel non. The test is, whether the issue is individual or representative. The executor is entitled to costs, when he acts out of regard for the interests of those eventually found to be entitled to the property. On settlement with the beneficiaries, they may ]oe decreed to pay the executor who compromised to establish the will. These propositions are legitimately drawn from the decisions in Koppenhafer v. Isaacs, 7 Watts, 170; Geddis’s Appeal, 9 Watts, 284; Rogers’s Appeal, 1 Harris (Penn.), 569; Scott’s Estate, 9 Watts & Serg. 98; Bradford v. Boudinot, 3 Wash. Cir. Ct. 122.
In Scott's Estate, supra, the testator’s will ordered that “ the remainder of his real and personal estate be applied to the education of poor children of all denominations to read the Bible, the best of all books.” The executors were empowered “ to sell the real and personal property, and apply the same to the use above mentioned.” The validity of the will was assailed, and the executor made an agreement with his counsel, by which he was to have one fourth of the estate, if the will was established, and nothing if it was defeated. He succeeded, and the amount was paid to him. Afterwards, on settlement of the executor’s account, this item was objected to. The proof showed that the services of the counsel could not have been obtained upon more favorable terms, if his fee was contingent. The court said: “ The executor litigated, not for his own interest, but for the interest of the party who got the whole estate by the litigation, and now refuses to reimburse him his expenses. Devisees might just as reasonably object to allow him the costs of an ejectment for recovering their land. The case is too plain for argument.”
The proof in the present case shows, that the appellant legatees were in imminent danger of losing the probate of the will, and, with it, their freedom. In addition to a strongly aggressive public sentiment against the provisions of the will, the testator was suffering from apoplexy, and the testimony was very contradictory in respect to his mental capacity. The facts and the authorities cited establish the correctness of the credits for the compromise and services of the counsel.
2. The testator bequeathed to each of the executors $1,000, “ as a compensation for their services in executing the provisions ” of the will. This compensation was altogether inadequate. We can hardly suppose that he meant what he said. By making it a bequest, it would scarcely be a strained construction, that he intended it as a gratuity, or acknowledgment of the service they would render him in executing his will. He would not have had his will fail of execution because of the meagre compensation allowed. However this may be, he [243]*243authorized the executors to appropriate “whatever sum” should be necessary to carry out the will. He did not mean by this, that the sums should, in every instance, be paid to other persons than themselves. The Revised Code (§ 2161) allows commissions of two and one half per cent, on the receipts, and the same on the disbursements, and for special or extraordinary services, such compensation as is just. In Pinckard v. Pinckard (24 Ala. 250), the administrator was allowed five per cent, on the amount of the estate, which he managed in making a crop for nearly a year. The estate was worth $25,000, and the service was considered extraordinary. The executors, in the present case, had managed the property about two years when the allowance was made to them, in one of which they had made a crop. Besides this, the contest of the will must have been very annoying and vexatious to them. One of them testifies, that the heirs-at-law gave them a great deal of trouble, by coming on the plantation, and carrying off such things as they chose. Under all the circumstances, we do not think the charge was excessive ; certainly not so much so as to reverse the decision of the chancellor.
3. The executors explain that, in charging themselves with the balance of $25,000 found in the settlement of 1860, and in dividing the amount between themselves, they merely so disposed of the debts due from the purchasers of the property. They claim that a large portion of these debts, which were perfectly good when contracted, were paid to them in Confederate money, and that they were not otherwise collectible at any time since they were so paid. The register, in his first report, refused to allow them any credit whatever on this account, and the court sustained their exception to the report. The instructions given to the register on this point, on recommitment of the report, seem to be correct, and in accordance with repeated rulings of this court. His second report allows nearly $19,000 of credits for Confederate money received, or uncollectible notes. It omits the credit of $20,000 paid in compromise of the probate of the will, and finds the executors indebted about $30,000. The sole exception to this report made by the complainants is, that the register refused to compute interest from May, 1860, to November, 1865. The chancellor reversed his former ruling in respect to the allowance of the credit claimed for the payment made to the heirs-at-law on compromise, and, in addition, credited the amount reported due with about $20,000 which the said executors in 1866 had paid to F. M. Wood, appointed guardian of the appellants by the probate court of Barbour county. Finding thus that no balance remained in favor of the complainants, he dismissed the bill.
[244]*244The evidence upon which the register acted is submitted. It appears that he allowed a credit of $1,795, the amount due from Mrs. Thornton, which the executor Thornton says he assumed. He also allowed a credit of $8,580 due from Gordon. This debt was assigned to Young .in the division of assets between the executors referred to. He says he mingled the trust funds with his own indiscriminately, and he appears to have collected them in. Confederate money. without objection, and without necessity. His showing of the insolvency of Gordon is not satisfactory. These are two errors in the confirmation of the report, for which the decree must be reversed.
Nothing can be decided in this case in respect to the guardianship of Wood. He is not made a. party. Whether the executors did right in paying to him $20,000, must be the subject of further investigation, in which he must be heard. On another hearing, there will be no necessity for going behind the settlement of May, 1860. Its correctness is sufficiently established. Let the $25,000 of balance be accounted for. The commingling of the trust funds with their own is a strong point against the executors. Nevertheless, my own opinion is, if they show clearly that the debts were adequately secured in the first instance, and that due diligence on their part would not have availed to collect them, in whole or in part, they should receive credit for such portions as would have been unavoidably lost. This is due, not as a general rule, but to the extraordinary circumstances attending their administration. Mixing funds is a very ambiguous expression, likely to be abused for want of-discrimination. To avoid it, it is not necessary to preserve the identical trust funds, the same coin or bank notes. But the court is of opinion, that the executors are personally liable for any of the trust property which they shall be shown to have nfixed with their own; and I concede that this is the general rule. Perry on Trusts, §§ 847, 843; Caffrey v. Darby, 6 Vesey, 496; Tyler v. Tyler, 3 Beav. 568.
It is proper that the whole matter, pertaining to this trust, including the guardianship of Wood, should be finally settled in this suit. And to this end, without further expression of opinion, the decree is reversed, and the cause remanded.