
    HOLMAN, Executor &c. vs. SIMS.
    [itn.al settlement of executor’s accounts.]
    1. Allowance to executor of costs and expenses incurred in unsuccessful suit. An executor is entitled to a credit, on final settlement of liis accounts, for the amount of costs and expenses, including a reasonable attorney’s fee, incurred and paid by him in the prosecution of an unsuccessful suit, which he instituted in good faith, and under the advice of an attorney, to whom he made a full and fair statement of all the facts within his knowledge; there being no proof of negligence on his part, or want of diligence in ascertaining the facts.
    2. Alloxoance of attorney's fee. — An executor is not authorized to-employ an attorney, at a cost of ten dollars, to attend to the prosecution of a suit before a justice of the peace, where the amount in controversy is less than ten dollars, and the suit involves no special circumstances ; such, for instance, as the amount of costs involved, without fault on his part, or the importance of the principle as affecting other cases; consequently, he is not entitled to a credit for the payment of such attorney’s fee.
    3. Compensation for exiraordimamj services. — An executor’s ordinary attendance on a pending suit, instituted by himself, does not belong to the class of “ extraordinary services,” (Code, $ 1825,) for which he may be allowed special compensation.
    4. Conehisiveness of annual or partial settlements. — Annual or partial settlements of an executor’s accounts, made under the act of 1850, (Session Acts, 1849-50, p. 32, § 28,) are only prima facie correct, and not conclusive on final settlement.
    Appeal from tbe Probate Court of Cherokee.
    In the matter of the estate of James Sims, deceased, on final settlement of the accounts and Touchers of John C. Holman, the executor. The widow of the testator, Mrs. Nancy Sims, contested several of the items on the credit side of the account, as stated by the executor. These items consisted of the costs and expenses incurred and paid by him in two unsuccessful suits, which he had instituted as executor, including an attorney’s fee in each case. One of these suits was an action of detinue, which he had instituted against Mary T. Sims, who was a daughter of the testator, to recover a slave, wbicb she claimed under a gift from the testator. The other was an action brought before a justice of the peace, to recover a balance of $6 55 due on a promissory note payable to the testator. The amount of costs paid in the detinue suit was $95 34, besides an attorney’s fee of $45 ; and the costs paid in the other case amounted to $6 50, besides an attorney’s fee of $10. The executor also claimed a credit of $22 50, the amount of tavern-bills &c. paid by him while on attendance in the circuit court; and $4, for two days’ services in attending to the case before the justice. The executor had been allowed a credit for some of these items, on an annual or partial settlement, in July, 1859; but, on the final settlement, which was had on the 20th January, 1862, the court sustained the contestant’s objections to all these vouchers, and refused to allow the executor credit for any of them. The material portions of the evidence relating to these items are stated in the opinion of the court. The executor reserved exceptions to the rulings of the court in refusing to allow him these credits, and he now assigns them as error.
    Jno. W. BaMsey, for the appellant.
   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.

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.

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.

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.  