Taylor v. Crook

136 Ala. 354

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

TYSON, J.

Counsel have practically argued but a single question. This question involves the propriety of the chancellor in alloiving H. P. Heflin a credit on the settlement of the administration of J. T. Heflin of $13,-608.24, as a fee to J. T. Heflin as attorney in probating the will of the deceased, Gantt. This bill of review ivas filed for the- purpose of vacating that decree. This proceeding cannot involve an inquiry into the value of the services rendered by J. T. Heflin, for that would require an examination of the evidence upon which the chancellor bases his decree, which is not permissible in bills of review. The point is, Avhether or not the items as disclosed by the proceedings, which Ave are at liberty to consider, conceding them duly proved as to amount, Avere a legal charge against the estate of EdAvard Gantt at the time it was alloAved.

The record sought to be revieAved, shoAvs that Gantt died in 1867, leaving a Avill in AAdiieh four persons were named executors, three of Avhorn refused to propound the Avill for probate; but the fourth, 'Samuel Leeper, authorized J. T. I-Ieflin, Avho Avas an attorney, to propound it and-to represent him in the probate of it.

■ After a prolonged contest, the Avill Avas admitted to probate on the 18th day of April, 1872. The fee claimed is for services rendered" in the contest and probate of the Aidll AAdiieh terminated on that date. Leeper died before the contest Avas decided, and J. T. Heflin, Avho performed the services as attorney, qualified as administrator Avith the will annexed, on the 13th day of May, 1872, and liad the administration moved into the chancery court, on a bill filed in May, 1879, on AAdiieh a decree was rendered on the 17th of February, 1881, assuming jurisdiction— after which time the administration of the estate proceeded in that court. By decree of the court made in May, 1883, the administrator Avas ordered to make a partial settlement, Avhich was made in 1886, the register’s report showing debits to the amount of $13,155.61, and credits to the amount of $8,595.14, leaving a balance in the hands of the administrator of $4,560.47. On the 16th of October, 1883, the administrator filed a petition in the cause, setting out his services as attorney in and about probating the Aid! 1, and asking a reference to the register to report on the value of such service. No parties were made to this petition, nor did it in any way seek a decree for the sale of the lands of the deceased testator for the payment of the alleged debts. The court entered a decree requiring the register to report on the claim, and the register made one report embracing the partial settlement above referred to and the matter of the fee. The report was set aside in August, 1887, and a new report ordered because the evidence as to the value of the attorney’s fee was not reported. The same report was afterwards made with the testimony and was confirmed by the chancellor on October 5th, 1887. This report fixed the fee at $4,000, with interest from April, 1S72, making a. total of $8,720, but the item was not embraced in those of the debits or credits of the administrator in the partial settlement. On the hearing before the register, the parties appeared in opposition to the allowance of the claim. Exceptions were submitted against its allowance by the register to the chancellor, who overruled them and allowed the claim. Prom his rulings an appeal was prosecuted to this court, Avhicli was dismissed at the instance of H. P. Heflin, the administrator of J. T. Heflin, who had died pending the appeal in 1889, on the ground that the decree of the chancellor was not final. On the return of the case, the administration proceeded. One Crook qualified as administrator de bonis non of Gantt and revived the suit against H. P. Heflin as administrator of J. T. Heflin. H. P. Heflin, administrator of J. T. Heflin, filed his answer and accounts for a final settlement of his intestate’s administration, in which he claimed as a credit, to his intestate the payment of said fee allowed by the previous order of Hie court. The opposing parties appeared and contested the claim anew. The register held that he was concluded by the previous decree, and allowed the claim in full as a credit to H. P. Heflin, administrator, etc. — the allowance being with interest from April, 1872, compounded from the 16th of September, 1887, the date of the allowance of the claim by the previous report confirmed by the court October 5, 1887, amounting in the aggregate to the date of the accounting, 22d of September, 1894, to the sum of $14,635. Exceptions were reserved to this report, but were overruled by the chancellor, who rendered a decree over, after exhausting all the funds in the hands of the original administrator, against Crook as administrator de bonis non for a large amount, requiring him to pay the same.

The two main questions presented are: First, was the claim a debt against the estate of Edward Gantt? Second, was it barred by the statute of limitations?

We will answer the last question first. It is clearly tiie law in this State that on the death of the ancestor, his estate takes a dual course as to title — the personalty vests in the executor or administrator, while the realty tests in the heir or devisee. As to the realty,, the perr sonal representative has only a power, to be. exercised in the mode, manner and within the time prescribed by law. It is equally well settled that the heir or devisee cannot be deprived of his estate under this potver without adversary proceedings commenced Avithin the period of the statute of limitations. And it matters not whether the creditor is the personal representative' or a third person. In either case, the lis pendens against the heir or person representing the heir must be commenced within the period of the statute. If the creditor is a third person, he must proceed against the administrator within the period, after which, he may charge the heir on failing to collect his judgment out of the representative or sureties on his bond. If the creditor is the administrator or executor, he must in like manuer proceed to assert his claim against the holder of the title within the period of the statute. Scott v. Ware, 65 Ala. 183; Steele v. Steele, 64 Ala. 439; Teague, v. Corbitt, 57 Ala. 543; Trimble v. Fariss, 78 Ala. 266; Cary v. Simmons, 87 Ala. 529; Warren v. Hearne. 82 Ala. 554; Chandler v. Wynne, 85 Ala. 308; Miller v. Irby, 63 Ala. 484; Bond v. Smith, 2 Ala. 660; Grimball v. Mastin, 77 Ala, 559. And money arising from the sale of land is regarded as land as to these matters. — McDonald v. Carnes, 90 Ala, 149; Chaney v. Chaney, 38 Ala. 35; Williamson v. Mason, 23 Ala. 488; Teague v. Corbitt, supra.

In this case, J. T. Heflin’s debt accrued, if a valid claim, on the probate of the will in 1872. He took no steps to charge the lands with the payment of the same within the period of six years. His right, therefore, was barred as to the lands. The record, the pleadings and reports of the register show that all the assets in his hands were lands oh the proceeds of lands, and that all of the present assets are of the same character. No steps were taken in the administration of the estate by J. T. Heflin until the bill was filed to remove the administration into the chancery court. This, we have shown, Avas on the 2Sth of May, 1878. But this was not a proceeding against the land for the payment of the debt. The next step Avas' the petition to the chancellor filed by the administrator to have his claim ascertained on a reference for that purpose. This was on the 16th of October, 1883, more than eleven years after its accrual.. This petition cannot be regarded as a proceeding to have the lands sold for its payment. The debt might easily be established and authorize an appropriation of the personal property to its payment, without effecting the realty. The heirs or devisees must be charged by proceedings of an adversary character setting up the debt and seeking a decree for a sale of the lands for its payment. — Garnett v. Garnett, 64 Ala. 263. The decree of the clianeellor allowing the claim is founded solely upon the report of the register made upon this petition. If it be said that the parties appeared and defended and for this reason they cannot object to the form of the proceeding, the ansAver is, that they set up the invalidity of the claim which Avas overruled .by both the register and the chancellor. The error, therefore, is plain. The ruling being that the heirs and devisees may have their land sold to pay a debt due on a quantum meruit, on proceedings commenced more than eleven years after the accrual of the right of action upon it.

It is argued, hoAvever, that this debt’is in the nature of costs against Avhich the statute of limitations does not run, and that a succeeding administrator could pay the same and claim credit therefor. The case of Henderson v. Simmons, 33 Ala. 291, in cited to support this contention. In tliat case, it is said any reasonable costs and expenses incurred by an executor in the honest endeavor to give effect to the. will, is a proper charge on the estate in Ms hands, and that a successor in office may pay such expenses and charge the estate therewith. This statement was made particularly with reference to two items of credit claimed by the administratrix who had succeeded the executor, but neither item was an expense of administration so incurred and both were disallowed. One was an attorney’s fee on the contest of the will, which the court said would have been allowed if the previous executor liad employed the attorney. It must be obvious that tins announcement .of the law, so far as attorney’s fees are concerned, was unnecessary to the decision of the point before the court. The attorneys in that case never having been employed by the executor, but by the settling administratrix before qualifying to protect her individual interest, no question was before the court as to the right of a trustee to impose a liability on the estate generally. Of course, any proper cost or expense incurred by a trustee is a charge in his favor on the estate in his hands, and he will never be deprived of the estate until his charges are paid, and no limitations would run against the items of charge while there was a live trust in existence in the hands of such trustee.

But an executor or administrator does not hold lands in trust; the title goes to the heir or tlevisee and the representative has only a.power to have them subjected to debts of the estate of the testator or intestate, but not for costs of administration. The heir or devisee has the right to plead the statute of limitations against all debts of every character. The proceeding to subject lands to hny liability, whether to creditors anterior to the administration, or to the administrator for costs of administration, must in all cases, be commenced against the owner of the land within the period of limitations.’ There must be, as we have said, an adversary proceeding within that time in due form, setting out the liability, making proper parties and claiming the relief desired. No such proceeding was instituted by Samuel Leeper; in fact, be never qualified as executor. His claim, therefore, against the land, supposing it one for which the land was liable, was barred. And if J. T. Heflin, as succeeding administrator, had in fact paid this item to a third person or to himself, it would be no legal credit to him or his successor as against the lands or proceeds of lands, unless within the period of the statute proceedings were duly commenced and prosecuted against the devisees to a judicial subjection of the lands to the specific claim. Expenses incurred by an administrator in a particular service, if chargeable against the lands, cannot as against the heir stand on a higher level .than debts of the ancestor. If the representative is not content to look to the personal estate in his hands, he must proceed in due time against the land, to make it liable, so that proper defenses, if they exist, may be made, líe cannot continue an administration for nearly thirty years and then ask an allowance, with interest for that long time, against the heir for expenses in probating the will, even if the lands were chargeable with such an expense, which is not the case unless the administration must be exercised over the lands for the payment of the debts of the ancestors created by him. Beadle v. Steele, 86 Ala. 421; Sermon v. Blade. 79 Ala. 507; Garrett v. Garrett, supra. It is clear to our minds that the claim was barred by the statute of limitations.

The other point is equally clear. Neither Edward Gantt, nor any one authorized to contract for him, or the estate, dealt with J. T. Heflin. Samuel Leeper, at best, employed him to have the will probated. Leeper was, at most, a quasi trustee having a right to employ a lawyer to perform the service, and on paying him, to ask an allowance against the trust. The rule against allowing persons dealing with trustees to proceed directly against the trust, is founded on public policy. The public interest requires that trustees shall incur the liability with the risk of its being disallowed, for cause, when they come to settle their accounts. This secures their good faith and keens a salutarv check upon their liberality in dealing with trust estates. And, besides, to allow a double liability and right in every creditor, to proceed against either or both, as he may prefer, would produce the utmost confusion. — Jones v. Dawson, 19 Ala. 672; Steele v. Steele, 64 Ala. 439, supra. The rule, thei'efore, is wise which makes the trustee liable to the person he deals with. There is no hardship in this. The creditor knows exactly where he stands before he makes the venture and cannot complain at the result. The trustee knows his position before he incurs any liability. The case cannot be improved by the statute of 1873, now section 4183 of -the .Code, since that statute has no retroactive operation. — Steele v. Steele, supra. But if it had, it would not apply, since Leeper was not a trustee, executor or administrator, who are the only persons provided for, and if he was, the case is not within the categories of the original statute or of the Code as to form or substance. — Munden v. Bailey, 70 Ala. 74; Askew v. Myrick, 54 Ala. 30. The law on this subject is well expressed by the court in the cases of Jones v. Dawson, Steele v. Steele, and Blackshear v. Burke, 74 Ala. 243. We quote from the latter: “A trustee, express or implied, can not, in the absence of express power conferred upon him, by his contracts or engagements, impose a liability upon the trust estate. If he make a contract which is beneficial to the estate, the creditor, or person with whom he contracts, has no equity to charge the estate, unless he be insolvent, which must be shown by the exhaustion of legal remedies against him, and the estate is indebted to him. In that event, a court of equity may subrogate the creditor to the right of the trustee to charge the trust estate.” This principle is sustained by many cases. — Mulhall v. Williams, 32 Ala. 489; Askew v. Myrick, 54 Ala. 30; Mosely v. Norman, 74 Ala. 423; Munden v. Bailey, 70 Ala. 74; Daily v. Daily, 66 Ala. 266; Grimball v. Mastin, 77 Ala. 559; Taylor v. McCall, 71 Ala. 53.

It may be said, and it is, in fact, argued with ability, that the case of Coopwood v. Wallace, 12 Ala. 790, is decisive of this point in this case. The case under consideration is not brought within the rule announced in that case, if that was the rule of this court, and' if the statute of limitations was out of the way, since there is no allegation that Leeper was insolvent. But the case of Ooop-w'ood v. Wallace, must be regarded, as overruled by the decisions of this .court, notwithstanding the unqualified overruling of it in Jones v. Dawson was mollified, if not qualified, by the dictum of the court in Mulhall v. Williams and alluded to argue,ndo in Askew v. Myrick, as an established exception to the general rule in favor of the legal profession. There can be no doubt that the case of Ooopirood v. Wallace has been practically repudiated and completely overwhelmed by many subsequent cases affirming the general rule, of which Steele v. Steele may be taken as an example, and confirmed by statute (Code, § 4183), providing for the particular cases in which and the conditions upon which trust estates may be liable in the first instance, to persons dealing with .trustees, which must be considered as excluding all other cases. There certainly exists no reason why the claims of attorneys should stand on any higher grounds than other services of like necessity to a trust estate. It may be entirely true a.s stated in Henderson v. Simmons, (33 Ala. 291) and Hearin v. Savage (16 Ala. 286), that proper costs and expenses of a previous administration may be paid by a succeeding administrator, and that he will be allowed a credit therefor in his settlement. Hé, in such case, becomes as it were, an assignee of the claim, and he must, establish it as a proper credit to the first administrator, or charge upon the estate which he could have been compelled to pay as representing the trust. And though it may be conceded that if only personal property in possession of the administrator was involved, the question of allowance would come up on his final settlement, without prejudice from the statute of limitations, it would be entirely different as to real estate. The proceeding to charge land or the proceeds of land for any liability incurred by the ancestor or by an administrator or executor, must, as we have shown, be inaugurated in due form, as to parties and declared purpose, within the limits of the statute of limitations.

If J. T. Heflin, then, was subrogated to the rights of Leeper and if Leeper could have asserted his claim Against the whole estate, including lands, and if Heflin would have all the rights of retainer, the case would not be bettered. This, because retainer by an executor or administrator cannot be exercised against land or its proceeds until the claim is established, after adversary proceedings commenced within the period of limitations. If J. T. Heflin had all these equities in support of a valid claim, there was no difficulty in his proceeding in equity, as soon as he qualified and without removing the .general administration, against the devisees to establish the claim and for the sale of the land for its payment. Never having done so, Ids administrator' cannot have a credit against the realty or a decree over for the debt, however meritorious it may have been. It appears, however, that this claim is for expenses of administration, which we have seen is not a liability against the land except where the lands have to be sold for the payment of debts. The conversion authorized by the will was for the purpose of división only. For all other purposes, the property remains real estate. Allen v. Watts, 98 Ala. 392; Johnson v. Holifield, 82 Ala. 127; Moore v. Campbell, 102 Ala. 449.

The only remaining question is whether on this bill of review, these errors are apparent. It is true, in this proceeding, that we are not permitted to look into the evidence to see whether or not it supports any conclusion ■of the court or fact shown by other portions of the record. We are bound to take the facts apparent upon the record as true, and the only question is, whether, the facts being true, the decree is free from error, that is, can be supported. What we may look at is expressed in one of the leading cases, McDougald v. Dougherty, 39 Ala. 428, where it is said: “We adopt the rule that * * * it is permissible to consult all the facts which are apparent in the pleadings, in the process and in its .service, in orders, reports confirmed and opinions and decrees.”. — Smyth v. Fitzsimmons, 97 Ala. 458; Bank v. Long, 97 Ala. 319; P. & M. Bank v. Dundas, 10 Ala. 667.

The original bill in the cause in which the decree was rendered, stated that the estate of the testator consisted almost entirely of lands, and the report of the register on which the decree was rendered contains an admission that all the assets were and are lands or their proceeds. The petitions and reports in reference to the allowance of the claim show that it was for services rendered by J. T. Heflin as an attorney for Samuel Leeper in procuring the probate of the will, which terminated in April, 1872. Every essential fact, therefore, to show the error of the decree in allowing I-I. P. Heflin, as administrator of J. T. Heflin, a credit and decree over against the proceeds of real estate on account of the services to Leeper is apparent in the record at which we must look. This decree is inconsistent with the law as applied to these facts and, therefore, cannot stand.

The decree cannot be supported on the idea that the confirmation of the first report of the register fixing the amount of the fee, was final. If it was final, it was no ascertainment of the liability of the land or its proceeds for its payment. There was no pleading alleging such liability or claiming such relief. The petition was filed on one day and on the next, the decree of reference was made, without parties being made or an opportunity to defend, requiring the register to report the amount of the fee. The report and decree confirming it did not fix or purport to fix a liability on the land. The fee did not even enter into the partial settlement as an item of credit. And if it had gone into such settlement, it would be open to the charge of error as a credit against the lands.

But independent of-this, the appellants appealed to this court to reverse the decree of confirmation and the appellee, who now claims that it was a final decree, induced this court to dismiss the appeal because the decree was not final. He will not now be permitted to say that the decree was final. — Smith v. Hodson, 2 Smith’s Lead. Cases, 138; Jones v. McPhillips, 82 Ala. 102; Hill v. Huckabee, 70 Ala. 183; Caldwell v. Smith, 77 Ala. 157; McQueen’s Appeal, 49 Ala. 592; Bigelow on Es toppel (5th ed.1), 556; 683; 7 Ency. Law (1st ed.), 19-20, 21, 22.

The bill is sufficient, in law and the demurrer to it should have been overruled, and a. decree will be here entered reversing the decree and overruling the demurrer. Reversed and rendered.

Haralson, J., not sitting. Dowdell, J., dissenting.