BRICKELL, C. J.
1. The statutes creating the separate estates of married women, deprive the husband of rights which would have accrued, and could have been asserted at common law. They do not absolve him from the duties the common law imposes. Rogers v. Boyd, 35 Ala. 175. The common law compelled him to maintain his wife — to supply her with necessaries suitable to her situation, and corresponding with his social position, and the degree of his fortune. If the husband neglects this duty the wife may on his credit, against his will, obtain necessaries, and he will be liable for them. In such case she is presumed to have authority to bind him, but the presumption is made only to enforce a performance of the duty. Schouler’s Dom. Rel., 85; 2 Kent. 128; Tyler on Inf. and Cov., 340. This duty of the husband did not arise from, nor was it solely dependent on, the common law principle, that marriage was a gift to the husband of the wife’s estate — that he thereby became vested with an ownership qualified or absolute, of her property, and rights of property. The duty was as obligatory on the husband, to whom the wife brought no portion, as on him who had received the largest fortune. It was a consequence of the merger of the legal existence of the wife, in that of the husband. The marriage relation contemplates that the husband and wife shall live together, and “the power of umpire must be placed in the hands of the one or the other of them,” This power, which is the power to rule the household, is committed to the husband. The wife is in subjection to, and dependent on, the husband; and from this subjection and dependence springs the duty to maintain her; as from the same relation of subjection and dependence arises the duty of maintaining the offspring of the marriage. The common law permitted parties entering into the marriage relation, to separate the wife’s property from the husband’s, and by contract to exclude the rights the husband would have otherwise acquired therein. From a separate estate thus created, the wife was not compelled to make any appropriation for her own support — nor had the person supplying her necessaries in the absence of a contract, express or implied, made by the wife, any equity to charge it. Gunn v. Samuels, 33 Ala. 201; 1 Bishop Right’s of Married Women, § 895. The statutes creating separate estates, allow them to be charged for necessaries in the narrowest sense of that term. Such articles “of comfort and support of the household,” “as the husband may be charged with in invitum — such necessaries for the maintenance and comfort of the family, as, in the absence of a proper provision by him, [97] his wife, or even a stranger, may supply to the family, and thereby fix a liability on him.” Durden v. McWilliams, 31 Ala. 438. The husband is not relieved from his liability for such necessaries. The measure of his duty to furnish them, is the extent of the liability of the'separate estate. In every suit to enforce this liability he is a party, and a personal judgment is rendered against him, corresponding in amount to the judgment of condemnation of the separate estate. Ravisies v. Stoddert, 32 Ala. 799. The object of the statute is not his relief, but it is to secure a suitable maintenance to the family.
Involved in the duty of maintaining the wife while living, is the duty of burying her on her death. Schouler’s Dom. Bel. 166. Though the wife dies while living separate from her husband* he is bound to pay her reasonable funeral expenses, and if he does not make'the provision, a person voluntarily paying them, is entitled to recover of him the amount so expended. Ambrose v. Kerrison, 4 Eng. Law and Eq. 361, The husband may remove' from the grave of the wife, a stone there erected by her parents, without his consent. The right of removal rests on “the indisputable and paramount right, as well as duty, of a husband, to dispose of the body of his deceased wife by a decent sepulture in a suitable place.” Durell v. Haywood, 9 Gray, 248. In Bertie v. Lord Chesterfield, 9 Mod. 31, the estate of the husband in possession of his devises, was charged with the payment of the testator’s wife’s funeral expenses. The husband had requested the plaintiff to see the wife buried. The judgment was not, however, rested on that fact, but solely on the ground that the huaband’s estate is subject by law to pay the funeral expenses of the wife. A different decision seems to have been made in Gregory v Lockyer, 6 Madd. Ch. 90, but the ground of decision does not appear. The court may have been enforcing a charge on the estate created by will, or imposed in some other manner. If it proceeds on the ground of a general liability of the wife’s separate estate, to the payment of funeral expenses, or of necessaries supplied her while living, it is in conflict with our own case of Green v. Samuels, supra. It is also in conflict with the principle on which a court of equity proceeds in charging the wife’s separate estate. The principle is, that the wife by her own contract or appointment, has created the charge. As to separate estates recognized in a court of equity, she is regarded as a feme sole, having full power of disposition, if it is not restrained by the instrument creating it. Her act only can charge it. As she cannot by law enter into contract, and [98] fix on herself a personal liability, her own engagements must be void, or chargeable on her separate estate. Her own act,, her own promises, express or implied, create the charge, and if these are wanting the separate estate is not liable. Collins v. Rudolph, 19 Ala. 616. It was never allowed the husband to charge the wife’s separate estate with the maintenance of the wife during coverture. “Such an allowance,” says Ch. Kent, “would be a fraud upon the marriage settlement by which it was expressly declared, that the husband was not to have any right or interest, in law or equity to any part of her estate.” “The estate was not to be subject to his control or engagements; and, to render it chargeable with the maintenance of her or his family, Avould be in violation of the settlement,” M. E. Church v. Jacques, 1 Johns, Ch. 450. If it is charged with the payment of the wife’s funeral ex - penses, to that extent it is charged with a debt for which the husband is legally liable, and he acquires an interest in the estate, when it is indispensable to its existence that all liability for his debts, and all right or interest of his, shall be excluded. Johnson v. Johnson, 32 Ala. 637 ; Lamb v. Wragg, 8 Port. 73. The statute creating the separate estates of married women, excludes all marital right of the husband, as known to the common law, and declares such estate “is not subject to the payment of the debts of the husband.” R. C. § 2371. The Imsband has not an equity to charge this statutory estate, as he had not to charge the separate estate created by deed, will, or other instrument, with necessaries furnished to the wife or to her family. Rogers v. Boyd, 33 Ala. 175. When, therefore, the appellant paid the funeral expenses of his wife, he paid his own debt only, and is not entitled to introduce it as a credit in his settlement of administration of the wife’s estate. Whether, if it appeared that the husband had not ability to bury the wife in a manner corresponding with her fortune, he should not be alloAved to claim of her separate estate funeral expenses on the same ground that a parent may charge his child’s estate Avith maintenance, is not a question presented by this record, and must not be regarded as affected by this decision.
2. In a court of equity, as a general rule, costs are within the discretion of the court, and their allowance or refusal is controlled by the particular circumstances of each case. In suits between trustees and cestuis que trust, where there is a fund under the control of the court, subject to the discretionary power of the court, the general rule is that trustees shall have costs as a matter of course, out of the fund, unless they have forfeited the right by misconduct. Tiff. & Bull, on [99] Trusts, 702. The reason involved in 'the rule, is thus stated : “Trustees have no beneficial interest in the trust property. They hold it for the accommodation and benefit of others. If they perform their duties faithfully, and are guilty of no unjust, improper, or oppressive conduct, they ought not in justice and good conscience to be put to any expense out of their own moneys.” Perry on Trusts, § 899. Where a trustee commits a breach of trust the general rule is, that he must pay the costs of the suit to rectify the wrong, but if there are other matters involved in the suit, in which the trustee is found to be without fault, he may have his costs in such other matters. Perry on Trusts, § 902. The decisions of this court have applied these principles in determining the allowance of counsel fees to administrators or executors on their settlement in the court of probate. Whether involved in litigation or not, any trustee is entitled to the assistance and advice of counsel in the performance of his duties, and there is neither justice nor good conscience in charging him with the compensation of such counsel. The care and diligence the trustee is required to exercise, is not for his own interest, but for the interest of the eestui que trust. The counsel assists and advises for them, and for their protection. Of course, in seeking such advice and assistance, and in the amount of compensation, good faith must be observed. The protection of the trustee, and the preservation of the trust estate, are alone considered in determining the propriety of an allowance of the compensation to the counsel he may employ to aid and advise him. An administrator or executor, under the system prevailing in this State, should have the assistance and advice of counsel, in many of the duties devolving on him. The advice and supervision of intelligent, conscientious counsel is to his protection, and the prevention of future litigation. So many of the proceedings he must take are statutory, and 'their value dependent on their conformity to the statutes authorizing them — so many of them are practically ex parte, and there is, and has been, such a “lamentable looseness,” in keeping the records of the court, before which he must proceed, that a prudent man, even at his own expense, would prefer the aid and assistance of counsel, to the hazards he would incur in acting without it. When, therefore, an administrator or executor, procures the aid and advice of counsel in his administration, in good faith, for his own protection, and that of the estate, paying only such compensation as is fair and reasonable, when considered in connection with the value of the estate, and the services rendered, he should [100] be allowed a credit for such compensation. Pickens v. Pickens, 35 Ala. 442. The compensation paid counsel was for advice and services to the administrator on a partial-settlement in 1867. The reasonableness of the compensation is not disputed, but it is said the administrator should not be allowed a credit for it, because the services were for his own benefit. When the services wer.e rendered, there does not seem to have been any controversy between the administrator and the heirs, but that is not material in determining the liability of the estate. Nor is it material that the services rendered were for the benefit of the administrator, unless it appeared-he was seeking a personal benefit, in opposition to his duty as trustee. If that appeared, he would not only be refused an allowance of such compensation, but would be subjected to a loss of compensation for his own services. Any advice and assistance rendered a trustee, is in a narrow sense for his benefit. It may protect him in action or in passiveness. A good reason for making a fair and just allowance to him for the aid of counsel, is that he is acting wholly in a fiduciary capacity, for the benefit of others, and so long as he is honest and diligent, should not be subjected to the dangers of personal liability. That he guards himself from such liability, and keeps within the line of his duty, and thereby secures a personal benefit, is a reason for and not against the allowance of such compensation. It is in making a settlement partial or final, that an administrator has special need of the aid of counsel. The vouchers on which he relies as credits are to be examined — the facts which show their justice as charges against the estate, are to be considered — the evidence which should be adduced to satisfy the court of their correctness, or to support them if controverted, is a matter on which counsel alone can advise. So far as is disclosed in this record, the administrator in good faith, for his own protection, and not to antagonize, or gain any advantage over the heirs, sought the advice and assistance of counsel in making this partial settlement, and though errors may have occurred in it, they do not appear to have been wilful, and he should have been allowed a credit for the sum paid them, its reasonableness being conceded.
3. On the final settlement of the administration, numerous exceptions were taken to the accounts of the appellant. Some of these were withdrawn, some were disallowed, and others were sustained, materially increasing the liability of the appellant. The appellant claimed a credit for the compensation he had paid to counsel representing him. The reasonableness of the compensation was not controverted, [101] and the only question raised was, whether under these facts, the appellant was entitled to credit for counsel tees. As we have already said, the appellant was entitled to the aid of counsel on the settlement, whether his accounts and vouchers were litigated or not. Under the principle on which a court of equity proceeds in allowing costs to trustees, (and the costs embrace the fees of counsel,) so far as the administrator was Avithout fault — so far as the exceptions taken Avere overruled or Avithdrawn — he should have been alloAved counsel fees, and should have been allowed them so far as recoverable, for advice and assistance, to which he would have been entitled whether there was litigation or not betAveen him and the eestuis que trust. If the labors of counsel were increased, and of consequence their compensation increased, because of the exceptions sustained, this increase of compensation should not be allowed. Without distinquishing in this respect, the claim was for a credit for the entire compensation of counsel. Presented in this form, the court did not err in refusing to allow the credit. The compensation must be apportioned, so as to charge the estate with a reasonable allowance for the advice and assistance rendered the administrator, so far as he was entitled to it, and for resistance of the exceptions Avhich were overruled or AvithdraAvn.
4. During the life of the Avife, the appellant as her husband, received one thousand dollars from her guardian. This sum, he claimed as a gift from the wife. If a wife can otherAvise than by Avill, make a gift to her husband 'of her statutory separate estate, the evidence in this case is not suf- ■ fieient to support a donation from wife to husband, especially when there is the superadded relation of eestui que trust, and trustee. No such donation is ever supported, unless it satisfactorily appears that it is not tainted Avith the influence springing out of the relation, and that it could properly and prudently be made by the donor; and that in the exercisemf the good faith and diligence, which the husband and trustee must exercise for the protection of the wife and eestui que trust, it was such a donation as he could conscientiously, “free from the taint of selfish interest,” have permitted made to another, for whom the wife or eestui que trust had an affection, that would stand as the reason of the gift. The motive of the gift was the reimbursement of the husband, of expenditures he had voluntarily made, and for which he alone Avas legally liable. If, Avhen he made them, he had been possessed of the wife’s money, he could not properly have applied them to such expenditures. To support such a [102] gift, would open the way for a transfer to the husband of the wife’s separate estate, in violation of the spirit and policy of the statutes creating it.
5. - The death 'of the wife was a dissolution of the relation of trustee and cestui que trust. When the appellant became administrator, he was in that capacity chargeable with the corpus of the wife’s separate estate. Whatever moneys he had received during the life of the wife, which constituted her statutory estate, was a debt due from him. The legal title to this debt — the sole authority to collect it, was vested in him. The right to demand, and the obligation to pay coexisting in him, the debt was extinguished by a legal presumption of payment. Ragland v. Colbourn, 36 Ala. 606. Charging him with such debt does not involve any settlement of his trusteeship. It is nothing more than the ordinary charge of an administrator with a debt due from himself to the intestate.
6. The husband as trastee, during the continuance of the marriage relation, is entitled to the income, the rents and profits of the separate estate of the wife, without liability to account for them. The purpose in securing them to him, is the support and maintenance of the family, and the avoidance of the distressing litigation, marring the peace of the family, which would almost inevitably ensue, from holding him to an account of his expenditures. When the relation is dissolved by the death of the wife, the husband’s right to such income ceases. The beneficial interest in the estate, is by law transmitted to those appointed to succeed to it, or to whom the wife may bequeath or devise it. If, after her death, he receives such income, he receives that which belongs to another and must account for it. The appellant was properly charged, therefore, with the hire of the slaves after the death of the wife, and while they remained in his service. He is not in any proper sense a tenant of the wife’s personal property. He has not a beneficial interest or ownership in it. He takes its income solely for the reasons stated. And no analogy drawn from the rights of a tenant for life to emblements, is applicable to him. Hays v. Cockrell, 41 Ala. 70.
7. The court committed no error in charging the appellant with the debt due from the guardian of the wife. After his qualification as administrator he had ample time to have made collection of the debt, and the guardian and his sureties for two years at least, seem to have been of ability to respond to it. If he choose to rely on statements made by the guardian that he was not prepared to settle finally — statements [103] which, if true in point of fact, would have been no answer to legal proceedings for a settlement — he must bear the loss resulting from his failure to take and ’ pursue such proceedings.
8. The charge against the administrator of $80, for the horse sold Mrs. Reese, is not proper if it formed part of the note given by her, which the administrator by the consent of the distributees surrendered to her. The bill of exceptions is not clear in its statement of the facts on which this charge is rested, but as the judgment must be reversed, on another hearing, the facts can be fully ascertained. If the distributees released the debt, there can be no reason for charging the appellant with it.
9. An administrator is chargeable with interest on his receipts until disbursement, unless he discharges himself by oath that he had not used the funds. R. C. § 2148. If he fails to collect debts, he is chargeable with interest on such debts, as well as principal. The object is the indemnity of those injured by his negligence. < The war did not-suspend or affect his liability for interest.
10. The costs seem to have been taxed in accordance with the rules laid down by this court. Jones v. Dyer, 16 Ala. 221; Henderson v. Renfro, 31 Ala. 101.
For the error we have pointed'out the decree is reversed, and the cause remanded.