
    MORROW vs. ALLISON.
    [RILL IN EQUITY BY DISTRIBUTEES TO SURCHARGE AND FALSIFY ADMINISTRATOR’S SETTLEMENT IN PROBATE COURT.]
    1. Equitable relief against probate decree, on ground of fraud. — A decree of tlie probate court, rendered on the final settlement of an administrator’s accounts, will he opened and set aside in equity, at the instance of non-resident distributees, who had no actual notice of the proceedings, on proof that the administrator claimed and was allowed a credit for a payment which he must have known he had never made.
    2. Administrator’s counsel fees on final settlement. — An administrator cannot complain on error of the chancellor’s refusal to allow him a credit for counsel fees incurred on the final settlement of his accounts at the instance of the distributees, when it appears that the institution of the suit was caused by his own misconduct, that some of the items litigated were properly decided against him, and that the vouchers presented by him were for his counsel’s entire services in the suit.
    3. Compensation of agent. — A person to whom a note is delivered, to be handed by him to an attorney for collection, thereby undertakes the performance of a mere friendly office, and does not assume a business agency for which he is to receive compensation; nor can he maintain a claim against the estate of the person from whom he received it, for compensation for services voluntarily rendered by Mm, in the prosecution of the suit, after the death of the owner, not in execution of any contract.
    Appeal from tbe Chancery Court of Morgan.
    Heard before tbe Hon. John Foster.
    
      The bill in this case was filed on tbe 6tb September, 1854, by Lewis Allison, Joseph Allison, and others, the surviving brothers and sisters of Thomas Allison, deceased, and the children of his deceased brothers and sisters, as heirs-at-law and next of kin of said decedent; against Thomas Morrow, as the administrator of the estate of said decedent, and Thomas Lynch and the administrator of Thomas Price, deceased, who were the sureties on the said Morrow’s oficial bond as such administrator. Its object was to set aside a decree rendered by the probate court of said county on the 13th December, 1852, on final settlement of the accounts and vouchers of said administrator, and compel Mm to make another settlement. The complainants resided in Kentucky, and alleged that they had no notice of the proceedings in the probate court until, within twelve months before the filing of their bill. The principal items in the administrator’s account, the correctness of wMch was contested by the complainants, were— 1st, a credit of about $800 allowed him as a payment made by him to Agnes Jones, or Agnes Cunningham; 2d, a credit of $300 allowed Mm as a payment made to Thomas Lynch, for services rendered in collecting a debt due to the estate, Mom Albert ~W. Jones and Crawford Jones, in Mississippi; 3d, a credit of $100 allowed him as a payment made to Hugh D. Morrow, for expenses incurred in going to and returning from Mississippi for the purpose of collecting the same debt; and 4th, a debit of $1150 as the amount received on the Jones debt, whereas the complainants insisted that he was chargeable with the whole amount of the debt, wMch exceeded $3,000; and with reference to these several items, the complainants charged fraudulent concealment and misrepresentation on the part of the administrator.
    Separate answers were filed by the defendants. The administrator denied all the charges of fraud and misconduct, insisted on the correctness of Ms settlement with the probate court, and demurred to the bill for want of equity. The chancellor overruled the demurrer, and, on hearing on pleadings and proof, set aside the probate decree, and ordered the master to state an account between the administrator and. the estate. He held, 1st, that the credit for a payment to Agnes Cunningham was excessive, and should be reduced to $143; 2d, that the credit for a payment to Thomas Lynch should be disallowed entirely; and, 3d, that the administrator was only chargeable with that portion of the Jones debt which was actually collected by him ; and the account was ordered to be taken accordingly. On the hearing before the master under the reference, the administrator claimed a credit of one hundred and fifty dollars, as a fee to his solicitors for their services in the cause, and reserved an exception to the refusal of the master to allow it; and he also reserved exceptions to the rulings of the master in relation to the payments to Agnes Cunningham and Thomas Lynch. The chancellor overruled the exceptions, and confirmed the report; and his decree is now assigned as error.
    Thos. M. Petebs, for appellants.
    D. C. HuhphRexs, and Bobinson & JoNes, contra.
    
   R. W. W ALKER, J.

In the partial settlement made by the administrator on the 20th of July, 1850, he is credited by $42 95, paid Agnes Jones ; and on his final settlement he is credited with $260 paid Agnes Cunningham, who is shown to have been the same person as Agnes Jones. It is clearly proved that the administrator never paid Mrs. Cunningham more than $143, in all; that of this amount, $43 was paid in money, and the balance in property, most of which was estimated at prices far beyond its value; and that the receipt for $260 to which Mrs. Cunningham put her mark, was not read to her, and she did not know what it contained. The act of the administrator in seeking and obtaining credit for $160 which, according to the evidence, he must have known he had not paid out, was a fraud upon the estate, which justified the chancellor in opening the final settlement, at the instance of the distributees, who were non-residents, and had no actual notice of the settlement, or of any of the proceedings in the probate court. Cowan v. Jones, 27 Ala. 317; Loomer v. Wheelright, 3 Sandf. Ch. 135 (153); Reigel v. Wood, 1 Johns. Ch. 402; Kennedy v. Dally, 1 Sch. & Lefr. 135 (154); Mallett v. Dexter, 1 Curtis’ C. C. R. 178-181; Foute v. McDonald, 27 Miss. 610; Allen v. Clark, 2 Blackf. 343; ib. 377; Manson v. Titsworth, 18 B. Monr. 582. How it might be, if tbe complainants bad appeared and defended in tbe probate court, we need not inquire. — See Greene v. Greene, 2 Gray.

Tbe misconduct of tbe administrator led to tbe institution of tbis suit; and in its progress be bas htigated some ■matters wbicb tbe chancellor bas properly decided against .him. It is true that be bas successfully contested some of tbe claims set up byfthe complainants; and it may be that, if be bad asked credit for reasonable fees paid to counsel for defending him against tbe claims thus held to be unfounded, be would have been entitled to it. But tbe claim is brought forward, in a gross amount, for tbe services of counsel in tbe entire case, when it is certain that much of tbe litigation, and a large portion of the counsel’s labor, were tbe result of tbe administrator’s fault. Tbe chancellor» with tbe lights before him, could not designate any particular amount wbicb would be a proper charge against tbe estate, and, according to tbe rule adopted in Pearson v. Darrington, (32 Ala. 230-273,) be did not err in overruling tbe defendant’s exceptions on tbis point.' — -See, also, 24 Ala. 295.

Although it is shown that Lynch did render some services in tbecollection of tbe $1150 received by tbe administrator on tbe Jones debt, wbicb was of benefit totbeestate, we do not think that tbe chancellor erred in treating bis claim for compensation as an improper charge against tbe estate. Lynch himself repudiated tbe idea that be was appointed by Allison as bis agent to collect tbis note. On tbe contrary, be insisted that tbe note was absolutely, and for a valuable consideration, transferred to him by Allison-. In bis dealings with Hodges, as well as in bis conversations with others, be claimed to be tbe sole owner of tbe note-. If, in point of fact, be was tbe mere agent of Allison for tbe collection of tbe note, it is not easy to reconcile tbis claim to exclusive ownership of tbe property of bis principal, with good faith on bis part. On tbe other band, bis claim of ownership seems inconsistent with bis subsequent conduct in allowing more than two-thirds of what was paid over by Hodges to pass into the hands of Allison’s administrator, as assets of the estate; and is contradicted, moreover, by his own statements, made to the witness Greenberry Eiggs, shortly after the death of Allison. There is, it must be admitted, a good deal of uncertainty as to the precise relation which Lynch bore to this note on -Jones. But we are inclined to consider the evidence of the witness just referred to as furnishing the most probable explanation of this matter. It is shown that Allison was very old and infirm, and unable to attend to business; and that Lynch was an intimate friend of his, disposed to do him favors, and much confided in by him. According to the statement which Lynch made to Eiggs, the former, having had some conversation with Hodges, (who had been collecting money from the Joneses on other claims,) in reference to this note held by Allison, visited the latter for the purpose of communicating to him what he had heard from Hodges; and on that occasion, Lynch having told Allison what he had learned from Hodges, Allison handed him this note, “ to give to Hodges for collection, to make the best arrangement he could with it;” no receipt being given by Lynch either for the return of the note, or the money when collected. Adopting this version of the transaction between Allison and Lynch, the undertaking of the latter was confined to the simple delivery of the note to Hodges for collection, upon the most favorable terms he could obtain And looking to the previous relation between the parties, it is very clear that their mutual understanding at the time’ must have been, that Lynch was voluntarily undertaking to perform, without reward, a mere friendly office for Allison, not assuming a business agency for which he was to receive compensation. — Morrison v. Orr, 3 St. & Por. 49-52. This agency, such as it was, terminated when Lynch concluded the contract with Hodges, and handed him the note. Any assistance which Lynch may have rendered in the prosecution of the suit, after the death of Allison, was voluntary on his part — not in execution of any contract with Allison; and is no foundation for a claim for compensation against the estate of the latter.

Decree affirmed.  