[Munden v. Bailey.] protect and preserve the interests of the estate, or to enable him to pursue the proper line of conduct in the discharge of the delicate duties with which he is sometimes intrusted; and he may, as a rule, pay a reasonable retainer to counsel, to advise and aid him in the trust, graduated by the value of the estate, and by the character of the questions likely to come up for solution; but he is not entitled to a credit for counsel fees paid as compensation for services rendered in the investigation of a claim due the estate, and in the preparation made for bringing suit on it, when the suit was not in fact brought, the claim was lost, and he shows no good reason why he did not follow the advice of his attorney. 9. Liability for failure to collect notes,-An administrator is chargeable with the amount due on a promissory note due to his intestate, which he failed to collect, when, by due diligence in bringing suit within a reasonable time, he might have collected the money; and when it is shown that the debtor was, for several years, in the open possession of a valuable plantation and personal property unincumbered, largely exceeding the amount due on the notes, and that another creditor collected his claims by suit during that time, the administrator can not relieve himself of liability for the failure to sue, by showing that the debtor was indebted to an amount greatly in excess of the value of his property, and that other resident creditors, prudent men, well acquainted with the condition of the debtor, also failed to sue, and lost their debts. 10. Contribution between co-sureties.-As between co-sureties, equality is equity, and any security given by the principal, for the indemnity of one, enures equally to the benefit of the other: hence, where the principal transfers to one surety, for his indemnity, notes executed by the other surety, and such notes are paid, the payment enures to the equal exoneration of both sureties, and the balance of the debt is a common burden on both; but, the notes not being paid during the life of the surety to whom they were so transferred, and the distributees of his estate seeking to charge his administrator with negligence in failing to collect them, the latter is entitled to the benefit of any excess of partial payments made by the surviving surety over and above his share of the debt. 11. Supplies furnished to laborers, by administrator.-Where extra supplies are furnished by an administrator, to the laborers employed in the cultivation of the plantation, and the amount so advanced is collected by him at the end of the year, being retained out of the laborers' share of the proceeds of the cotton crop, he is chargeable with the amount so collected, on settlement with the distributees. 12. Advancements by administrator, to or for infant distributees.—In ordinary cases, an administrator can not claim a credit, on final settlement of his accounts, for moneys advanced by a third person, at his instance and request, to or for the infant distributees; but, where he has acted as guardian for them, at their request, and on their promise that he should be reimbursed on final settlement for all moneys expended for them, and they admit the request and promise, and declare their willingness to abide by it, he is entitled to such credit on settlement of his accounts in equity; and if he has not repaid the moneys so advanced for him, and is insolvent, any excess found due to him, on the statement of accounts between him and the distributees, may be ordered to be paid to the person by whom the advances were made. 13. Same. When an administrator makes advances to the infant distributees, in excess of their distributive share of the personal assets, he can not have the land sold for his reimbursement; but, if he made such advances while acting as their guardian, at their instance and request, and on their promise that he should be reimbursed on final settlement, and they recognize and admit the promise, he is entitled to relief in equity by virtue of the agreement; yet the liability of the distributees is several, not joint, and each is chargeable only with the excess of the advances made to him over and above his distributive share. [Munden v. Bailey.] 14. Services rendered for benefit of trust estate.-When services have been rendered for the benefit of a trust estate, in the hands of an administrator or other trustee, and a bill in equity is filed for the settlement of the estate, the person who rendered such services may file a petition in the cause (Code, § 3748), and have his claim allowed out of the trust estate, to the extent of any balance due to the trustee, but no further. 15. Same; when petition is allowable.-When the trustee, at whose instance the services were rendered, is insolvent, a remedy by action at law, against the trust estate and the beneficiaries, is given to the person by whom the services were rendered (Code, § 3747); but he can not intervene by petition. in a pending suit for the settlement of the estate, between the trustee and the beneficiaries. 16. Same; attorney's fees.-Services rendered by the attorneys and solicitors for the administrator, in the suit instituted by him against the distributees, for a settlement of his accounts as administrator, and also as quasi-guardian under the agreement with the distributees, are not services rendered for the trust estate (Code, § 3747), and are not within the terms of the agreement; "still, to some extent, he has the right to have the expense charged on the trust fund in his hands, or on any balance of assets not disbursed, and a division of the burden should be so adjusted as to leave on the trust estate that proportion which shall represent the unjust claims asserted by the distributees, while the balance rests on the administrator personally.” APPEAL from the Chancery Court of Perry. The original bill in this case was filed on the 6th November, 1876, by James F. Bailey, as administrator of the estate of Needham Munden, deceased, against the distributees of said estate, who were Mrs. Nancy B. Munden, his widow, and William P. and Walter C. Munden, his two sons; and sought a settlement of his accounts as administrator, and also as quasiguardian for the two sons at their instance and request, and to enjoin proceedings in the Probate Court to compel à settlement. The complainant's letters of administration were granted on the 3d April, 1869, and he duly qualified, and gave bond, with Thomas B. Sprott and others as sureties. The decedent died on the 5th February, 1869, being possessed of a valuable plantation in said county, and of considerable personal property. The administrator took possession of the lands, and cultivated them, during the years 1869 and 1870, and with the proceeds of the crops, and other means, paid all the debts of the estate. In January, 1871, the widow's dower was set apart to her; and about the same time the personal property was sold, under orders of the Probate Court, and her share of the proceeds paid to her. At the time of the intestate's death, his two sons were of the ages of sixteen and thirteen years, respectively; and no guardian having been appointed for them, the administrator consented and agreed to act as guardian for them, at their special instance and request, as he alleged, and on their promise that he should be reimbursed, on final settlement of his accounts, for all moneys he might pay out in that capacity to or [Munden v. Bailey.] for them. The lands belonging to the estate, after the allotment of the widow's dower, consisted of a tract containing nearly five hundred acres, which were rented out by the administrator during the years 1871, 1872 and 1873, and the possession thereof was then delivered to William P. and Walter C., who afterwards cultivated them. The bill alleged that the complainant had exhausted all the personal assets in the payment of debts, and in the support, maintenance and education of the said William and Walter, and had used a large amount of his own moneys in expenditures and disbursements for their benefit; that he had rendered extra services as attorney for the benefit of the estate, and in the management of the plantation, for which he had never received any compensation; that the estate was also indebted to him for the compensation of attorneys whom he had employed to represent and protect the interests of the estate, and owed several hundred dollars as fees and costs of administration to the judge of probate. On the 29th May, 1875, a citation to the complainant was issued from the Probate Court, requiring him to file his accounts and vouchers for a final settlement of his administration; and having filed his accounts and vouchers as required, on the 29th September, 1875, he then filed his bill in this case, asking that the settlement might be removed into equity, that his account might be there stated, and that the land might be sold for the payment and satisfaction of any balance found due him. The chancellor sustained a demurrer to the bill, for want of equity; but his decree was reversed by this court, on appeal, during its December term, 1877, and the cause was remanded. See the report of the case, in 58 Ala. 104. After the remandment of the cause, answers were filed by each of the defendants; and cross-bills were afterwards filed by them, bringing in as defendants the sureties on the administrator's official bond, alleg ing his insolvency, and praying a decree against them for whatever balance might be found against him. Thomas B. Sprott, one of the sureties, having died before the bill in this case was filed, his administratrix was made a defendant to the cross-bills; and she pleaded the statute of non-claim, alleging that more than eighteen months had elapsed since the grant of administration to her, and that the claim now asserted had never been presented to her within the period prescribed by law. The chancellor sustained the plea, and dismissed the cross-bills as against her and Sprott's estate. The administrator's accounts and vouchers having been filed in the office of the register, pursuant to a decretal order of the chancellor, numerous exceptions were filed to them by the dis telutees; and on the statement of the account by the special ter, the investigation being protracted at great length, [Munden v. Bailey.] many exceptions to his rulings and decisions were reserved by each party. The present appeal is sued out by the distributees, who here make thirty-five assignments of error, twenty-four of which are founded on the chancellor's rulings on exceptions to the register's report; but a statement of all these exceptions is not material to an understanding of the points decided by this court. The opinion states the material facts connected with the points decided. JOHN F. VARY, for appellants. W. L. BRAGG, and L. N. WALTHALL, contra. STONE, J.-As we shall hereafter show, several errors were committed in the court below, which will cause a reversal of the decree rendered by the chancellor in this cause. A remandment will follow, and a re-statement of the account will become necessary. We shall, therefore, endeavor to give such directions, and to so declare the rules to be observed by the register, that he may, on another trial, so state the account that, if possible, the litigation between these parties, which has become very earnest, if not acrimonious, may be hastened to an adjustment. In doing so, we will not only consider and determine certain questions in which we think the chancellor erred to the prejudice of appellants, but we will also express our views on certain other rulings, in which we think error was committed to the injury of the appellee. As we said, we do this to hasten, if possible, the end of this disagreeable litigation, and to render unnecessary an appeal by the appellee to this court, to obtain a correction of the errors committed against him. We find further justification of this course in the fact, patent in the record, that an unusual length of time was consumed in taking the account, and very great expense must have attended it. This expense must fall heavily somewhere. It is the interest alike of parties and the public, that litigation be brought to an end, with as little delay and as light expense as possible. What we may hereafter say, is not intended to affect the chancellor's ruling on the defense of non-claim, interposed by Sprott's administrator. No exception has been taken to that ruling, and no argument offered against it. It is not our intention to disturb it.-Fretwell v. McLemore, 52 Ala. 124. 1. The general measure of an administrator's duty is, that he must act in good faith, and bring to the service that degree of care and diligence which an ordinarily prudent man bestows on his own affairs of similar nature. He is not an insurer, and is not expected to be infallible. He must, however, be diligent [Munden v. Bailey.] in conserving the interests of the estate. Diligence and fidelity are what the law exacts of him. Failing in either of these, if loss to the estate be the result, he must make it good.-Lyon v. Foscue, 60 Ala. 468; Gould v. Hayes, 19 Ala. 438. We do not understand either party as controverting this legal principle. In truth, earnest as the conduct of the present litigation is, there is not much difference of opinion on legal questions. The contest is over the facts, and inferences to be drawn from the testimony. 2. Exceptions were taken to the introduction of some of the testimony. The details of an alleged quarrel between W. P. Munden and Mrs. Nancy Munden were allowed to be given in evidence, against the objection of the appellants. This testimony could shed no light on any question in issue, and should not have been received. Its only effect, if effect it had, was to divert the mind of the register from the questions in issue before him. We do not deny the competency of evidence to prove the state of feelings between these parties. They represented interests somewhat antagonistic, and each testified as a witness. Enmity is supposed to bias a witness in giving his testimony, and it is but right that it should be known to the tribunal trying the issue, when it exists. But, in such case, it is allowable to prove only the fact of such enmity or unfriendliness. The cause, merits, or details of the quarrel, can never be material or pertinent-always tend to foist into the contention an immaterial issue, and should not be received.-MeHugh v. The State, 31 Ala. 317, and authorities cited ; 2 Brick. Dig. 549, $ 124-6. 3. Some books, or memoranda, were received in evidence against objection, which were not brought within the rule. We refer specially to the book called a "Shipping Manifest," and to the books of Woolsey & Sons. To some extent, the same remark may be made of the memorandum-book kept by Mrs. Munden. In Acklen v. Hickman, 63 Ala. 494, we laid down the rule to be observed, in reference to memoranda produced by a witness, or shown to him, to aid his recollection. See, also, Jeffries v. Castleman, at last term. As to the manifest, there was no proof offered of its correctness. It was wholly irrelevant and illegal. We must, then, consider the questions, as if the manifest was not in evidence before the register. 4. The register, in his investigations, had the witnesses present before him. That gave him advantages in weighing the testimony, which neither the chancellor nor this court can enjoy. His findings on controverted facts should not be disturbed, unless he based them on erroneous conclusions of law, or illegal evidence, or unless it is manifest he erred in weighing the testimony. |