ther corrected so as to insert the sum of $2,886.70 in lieu of said sum of $2,647.20 where the same appears. * It is further ordered, adjudged, and decreed that said report, as the same is hereby corrected, be, and the same is hereby, in all things confirmed. It is further ordered, adjudged, and decreed that the said funeral expenses, and the costs of the administration of said estate, and costs of court remaining due and unpaid, making, in all, said sum of $2,886.70, together with the other costs of court in this cause incurred, be, and the same are hereby, declared to be a charge upon the three Alabama state bonds, class 'C,' numbered, respectively, 803, 923, and 947, with all coupons attached from July 1, 1892, inclusive, the same being three of the seven bonds referred to in item 4 in the will of Susan F. Rouse, deceased; and it is further ordered, adjudged, and decreed that the said executor, Frederick G. Bromberg be, and he is hereby, ordered to forthwith sell said bonds, and apply the proceeds thereof, so far as necessary, to the payment of the said funeral expenses and costs of administration, and costs of court remaining due and unpaid at the filing of said report, already above fixed at $2,886.70, together with the other costs of court in this cause incurred, and that he pay over the balance of said money, so realized from the sale of said three bonds, if any, to the legatee Henry Alexander. It is further ordered, adjudged, and decreed that the executor, Frederick G. Bromberg, now has in his hands belonging to said estate, and being a balance from the assets of said estate not disposed of by said will, the sum of $3,525.20, the same being the sum of $638.50, shown to be the assets now in his hands as a balance, plus said sum of $2,886.70, which were retained by him out of said assets not disposed of by said will, with which to defray the costs of administration, which have been above provided for out of said three bonds, and the said executor is hereby instructed and directed to forthwith pay over to the complainants in this cause, Theodore C. Bates, Martha Ann Bates Brown, Eugenia Bates Bernard, share and share alike, said sum of $3,525.20, which is decreed to be due to them by said executor, and for the payment of which let execution issue; and that said executor likewise deliver to the complainants the Family Bible of Susan F. Rouse." This decree was rendered on Judy 10, 1897. From this decree the defendant Henry Alexander appealed, and assigned as error the decree charging upon the bonds devised to him the payment of the debts, funeral expenses of the testatrix, and all the expenses and costs of administration and the rendition of the final decree. By consent of the appellant, in writing, indorsed on the transcript, the complainants in the original bill, Theodore C. Bates et al., separately and severally made cross assignments of error, wherein they assigned as error the rendition of the decree on July 10, 1897, in which the

chancellor overruled the complainants' sev eral exceptions to the register's report filed December 18, 1896, and in fixing the accounts of credit to which the executor was entitled in accordance with the said report of the register, as corrected by said decree. The complainants also assigned as error the rendition of the decree of January 16, 1896, in confirming the report of the register filed October 22, 1895.

Gregory L. & H. T. Smith, for complainnts Bates and others. Bestor & Gray, for defendant Alexander. Pillans, Torrey & Hanaw and Fred K. G. Bromberg, for defendant executor.

SHARPE, J. Upon a former appeal the will involved in this cause was set out at length in the report of the decision, wherein it was in part construed. See Bromberg v. Bates, 112 Ala. 363, 20 South. 786. Since that appeal the appellee executor has made two settlements in the chancery court. This appeal is from the decree rendered upon the last settlement. The decree subjects three Alabama bonds left by the testatrix to the payment of her funeral expenses and of certain costs and expenses of administration. The appellant Alexander claims these bonds as a legatee, and the only question pressed for decision upon his appeal is whether the bonds may properly be so subjected.

Some parol proof is found in the record of declarations made by the testatrix touching the disposition of her Alabama bonds, but it is of no value in construing the will. Parol proof may be admitted when necessary and useful to disclose the circumstances surrounding the testator, the situation of his property. and of the persons who are affected by the will, so as better to enable the court to learn the testator's intention, and thereby to arrive at the meaning of provisions otherwise obscure; yet the instrument must be construed according to the writing itself, illustrated, it may be, by a view of the situation, but without recourse to oral declarations of meaning or intention.

The only provisions of the will which relate to the debts, expenses, and bonds in question are contained in the first and fourth items, which are as follows: "Item First. It is my will that all my just debts, funeral expenses, and expenses of administration be paid out of my personal estate. Item Fourth. I give and bequeath to said Henry Alexander whatever Alabama bonds I may have remaining at the time of my death, now amounting to seven in number, of one thousand dollars each, and not used by my executor in the payment of my debts, funeral expenses, and expenses of administration." Bequests absolute in terms are made to various persons, and certain property is mentioned as undisposed of, over which power of disposition is reserved to be made by codicil. No codicil was made, and of the undisposed-of prop

erty, besides real estate, personal property remained amply sufficient to pay the debts and expenses, and from its proceeds the executor has paid most of the debts and expenses. It is plain that the will does not expressly charge the bonds, and we are of the opinion that its language does not imply that they are to be charged, to the exoneration of the undisposed of personalty. The words, "and not used by my executor in the payment of debts," etc., are not equivalent to a direction to the executor to use the bonds, and they seem to imply no more than a mere authority to use them, either at the executor's discretion, or in case he should find such use necessary for want of other available personalty. Whether the authority was so discretionary need not be determined, since it has not been exercised, and since, under our construction of the will, the words last quoted were not intended to qualify the bequest of bonds except upon the contingency of their use by the executor. This is according to the letter of the will, which must be the guide to the testatrix's intention, in the absence of a safer one. This construction is assisted by reference to the first item, wherein the personal estate generally is mentioned as the source from which the debts and expenses are to be paid. The statute commits the general personalty to the executor's administration; and that the testatrix intended to do so is clear from her expressed intention to dispose of her remaining property by means of a codicil to the same will in which she names the executor. Therefore, it must have been within her contemplation that the executor, in obtaining money to make the directed payments, would not be confined to property included in the will. No bonds having been used by the executor, and there being no necessity for their permitted use, the condition exists which, by the express terms of the will, entitles the appellant Alexander to have them, undiminished by the charge imposed on them by decree. Under Alexander's appeal, the decree, so far as it creates the charge in question, will be reversed, and the cause will be remanded for further proceedings in accordance with this opinion.

That

In the cross appeal, which is by the original complainants, Bates and others, certain assignments of error are made by the cross appellants on the decree of January 16, 1896, which ascertained the amount of money in the hands of the executor and belonging to the testatrix at the time of her death. decree was based on a report of the register made pursuant to a reference ordered and held, whereon the parties were represented, and evidence was taken on both sides of the controversy. Exceptions were filed to the findings of the register, and the decree, after disposing of the exceptions, proceeds as follows: "It is therefore further decreed that the total amount in the hands of said Bromberg [the executor] at the time of the death of Miss Rouse [the testatrix] was eight

thousand dollars, and the report is in this respect corrected. It is further adjudged and decreed that the report, as so corrected, be, and it is hereby, in all respects ratified and confirmed." The finality of a decree is not determined by the stage of the suit at the time it is rendered, but upon whether it concludes a party in imposing on him a liability or in depriving him of a right. That decree made final disposition of the special matter then being litigated, and was binding, not only upon the executor, but upon the cross appellants, and it has never been appealed from. Either of the parties might have appealed within the time allowed by law, but that time elapsed prior to the present appeal, which, being from a subsequent and different decree, gives this court no jurisdiction to review the former final decree. Joinder in error may waive irregularities in the mode of taking an appeal, but it does not dispense with the appeal. Etowah Min. Co. v. Wills Valley Min. & Mfg. Co. (Ala.) 25 South. 720.

Objections were made to the allowance to the executor of commissions, and of certain items of expense incurred by suits, on the sole ground that the litigation was improperly entered into, and entailed loss upon the heirs. The only evidence to which the chancellor was referred in support of these objections was the papers pertaining to the litigation, and from them it cannot be seen that the executor acted in the litigation otherwise than from a reasonable regard for the interests of the estate. An executor forfeits his right to compensation only as incident to an unfaithful administration, and where he has been guilty of default or gross negligence, of which loss to the estate has been the consequence. Pearson v. Darrington, 32 Ala. 227; Smith v. Kennard's Ex'r, 38 Ala. 695; Ivey v. Coleman's Ex'r, 42 Ala. 409.

Allowances to the executor for his own services as an attorney in the will contest were objected to on no other ground than that the services were unnecessary, because the contesting heirs and legatees had employed counsel to represent them on the contest. To support this objection the chancellor was referred only to the testimony of the executor himself. That shows that some of the legatees were represented by counsel, but that he, as executor, represented the interests of the estate, and incidentally of all beneficiaries under the will. In Henderson v. Simmons, 33 Ala. 291, it is said: "It is the privilege, if not the duty, of one named as executor of a paper purporting to be a last will and testament, to propound it for probate. If he have no knowledge or reasonable grounds on which to predicate a well-grounded suspicion against the legality of the will, and propound the paper in good faith, he but carried out the intention with which he was appointed. Any reasonable costs and expenses incurred

by him in the honest endeavor to give effect to the will is a proper charge on the estate in his hands." We must assume that this executor was acting in good faith, since his effort to establish the will, though resisted, was successful. These allowances to the executor were made by the register on testimony taken before him on a reference, and the presumption is in favor of their correct

ness.

Those objections to the executor's credits which were made on the ground that the payments represented by the credits were not charged upon the Alabama bonds are disposed of by what we have said in construing the will.

As to the cross appellants, Bates and others, the decree will be affirmed, at their cost.

(126 Ala. 176)

CHANDLER et al. v. CROSSLAND et al. (Supreme Court of Alabama. May 8, 1900.) APPEAL AND ERROR-FINDING OF FACTSCONCLUSIVE ON APPEAL HUSBAND AND WIFE-WIFE'S LIABILITY FOR CONTRACTS OF HUSBAND.

1. Under Code, §§ 3320, 3321, providing that where a jury is waived, and a special filing is requested, the court must state in writing the facts as found, and that either party may reserve, by bill of exceptions, any ruling or decision of the court to which an exception could have been reserved on a jury trial, and that on appeal the supreme court must determine whether the facts are sufficient to support the judgment, the supreme court cannot go behind the facts found, and the only office of a bill of exceptions is to reserve for review the rulings on the evidence.

2. The obligation of a husband to pay a sum of money to the sureties on his bond as administrator of an estate in consideration of their suretyship and insurance premiums agreed to be paid by him for insurance upon his wife's property cannot be enforced against the separate property of the wife, where the acts of the husband were never ratified by the wife, and the obligations were contracted without her knowledge or consent.

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by Nannie S. Crossland and W. A. Crossland against Willis L. Chandler and T. L. Jones, co-partners under name of Chandler & Jones, to recover possession of certain personal property. From a judgment for plaintiffs, defendants appeal. Affirmed.

The cause was tried by the court without the intervention of a jury under an agreement between the parties in writing to proceed without a trial by jury, but requesting a special finding of the facts. Upon the introduction of all the evidence, the court reduced his special finding to writing, which was in words and figures as follows:

"The court finds that the plaintiffs, W. A. and Nannie S. Crossland, are, and have been since prior to 1892, husband and wife; that Nannie S. Crossland, the wife, was the owner of some property, and W. A. Crossland, the husband, without any specific agreement

to that end, attended to it for her; that about November, 1892, W. A. Crossland was appointed administrator, by the probate court of Dallas county, Ala., of the estate of Rebecca E. Smith, deceased, the said Nannie S. being interested in said estate as one of the heirs thereof; that defendants became sureties upon the bond of said Crossland as said administrator, under a written agreement between defendants and said W. A. Crossland, to the effect that Crossland, as said administrator, should deposit the funds of said estate with defendants, as compensation to defendants for signing said bond; that afterwards the terms of said agreement, for the reason that a partial distribution of said estate had been determined upon, was changed by agreement between the parties, by the said W. A. Crossland, individually, agreeing to pay the said Chandler & Jones the sum of $300 as compensation for becoming his sureties on said bond, in lieu of the first agreement.

"That said W. A. Crossland, while he was such administrator, deposited with said defendants, Chandler & Jones, who were then engaged in a general banking business, and to his credit as administrator, some of the money belonging to said estate, and subject to his checks; that about the 3d day of May, 1898, the said administrator made a settlement of said estate, and the interest of said Nannie S. Crossland therein was decreed to be, to wit, $1,757.30; but she had previously (in 1892) received on her share of said estate $1,200, so that there was actually due her at the time of this settlement $557.30; that on the making of this settlement said administrator exhibited his wife's receipt purporting to be in full of her interest in said estate, and he received credit on his account therefor, but that he had only paid her the amount of $1,200, and he then owed her a balance of $557.30, which last-named sum was then on deposit to the credit of his account, as administrator, with defendants, and the money of said estate, and left there for the purpose of paying his said wife, after having paid the expenses of said administration and the amount due the other heirs, and he gave his wife his check, as such administrator, on defendants for said sum of $557.30. The above-mentioned receipt was given merely for the purpose of the settlement, and it was agreed between Crossland and wife at the time said receipt was given, that said administrator would give her the check on defendants, which check was given at or shortly after that time. Nannie S. Crossland indorsed said check in blank, and presented it to the defendants at or about the time it was given, viz. May 5th, 1898, with request to apply so much thereof as was necessary to the payment of the balance due on her notes to defendants hereinafter mentioned, but defendants refused to honor said check, for the reason that they claimed the right to hold the money until the said W.

"That on November 23, 1896, Nannie S. Crossland borrowed from the defendants the sum of $331.25, and on that day executed her promissory note to them therefor, payable one day after date, and at the same time, and as collateral security to said note, the said Nannie S. Crossland transferred and conveyed to the said Chandler & Jones, eleven rent notes given to the said Nannie S. Crossland by one Johnson, for $20 each, payable monthly, commencing on the 1st day of November, 1896, and also conveyed to the said Chandler & Jones her undivided interest in the estate of said Smith, to cover whatever balance might remain unpaid of said note on any other indebtedness on her account, with them that might be due to them. Said rent notes of Johnson were promptly paid by him to defendants as they matured.

"On May 18, 1897, W. A. Crossland, and Nannie S. Crossland, with others, executed to defendants their promissory note for value, in, to wit, the sum of $337.10, payable on or before the 18th day of November, 1897, and at the same time, and as security to said note, pledged the property sued for, under an agreement between the plaintiffs and defendants that upon payment in full of said last-named note, said property should be returned to the plaintiffs. About December 14, 1896, Nannie S. Crossland made to Chandler & Jones her promissory note for $20 for value, payable January 14, 1897, with interest from date. These notes and agreements of Nannie S. Crossland were duly assented to by her husband. The amount of said check was sufficient to pay balance on said notes.

"December 29, 1896, W. A. Crossland procured Chandler & Jones to insure the household furniture of Nannie S. at a cost to them of $12.50. February, 1895, Nannie S. borrowed from one Vinson $2,600, and mortgaged her house and lot to secure payment. Said mortgage required the property to be kept insured by the mortgagee, and a policy was taken out at time of loan for one year. January, 1896, W. A. Crossland directed Chandler & Jones to procure a policy on said real property, for a term of 3 years, which they did, at a cost of $60. Mrs. N. S. Crossland did not request the procurement of either the $12.50 premium or the $60 premium policy, nor did she know they were in existence until this controversy arose. She knew the requirement of the mortgage. According to the terms of the $60 premium policy, the insurance company had a right to cancel the policy at any time returning any then unearned premium. September 10, 1898, said $60 premium policy was canceled,

$33. Both premiums, viz. $12.50 and $60, were charged by Chandler & Jones on their books to the account of W. A. Crossland alone, and were purchased by them on the sole expectation that W. A. Crossland would pay for them. Subsequently and after this controversy arose, Chandler & Jones charged the account on their books, without the knowledge or consent of Mrs. Crossland by adding the name of N. S. Crossland as a party debtor.

"The court finds that the indebtedness for which the articles sued for were pledged, and the other indebtedness of Mrs. Crossland to Chandler & Jones, had been paid before the suit was brought.

"The court further finus that before the bringing of this suit, and after the presentation of said check, the plaintiffs demanded possession of the property sued for, from the defendants, and they refused to surrender it; and further, that the defendants were, at the time of this suit, in the possession of said property. The court further finds the value of the property to be as fixed and stated in the judgment entry in this cause, which is hereby referred to.

"The court further sets out, as a part of its findings in this cause, a memorandum filed with the clerk at the time judgment was rendered in the case, which was intended to be a mere memorandum for the attorneys, and not as a finding of fact, required by the statute and the request of the parties, which said statement is as follows:

"Whatever authority a husband exercises as the agent of his wife, must be derived from prior appointment or subsequent ratification. If a contract is made in the name of the husband, it is not the subject of ratification by the wife. If made in the name of the wife, it is indispensable to charge her by ratification that she has full knowledge of all the material facts. The same is true of estoppel. Mechem, Ag. §§ 63, 87, and 127, and 148. In this case I find that Crossland had no authority, express or implied, to charge Mrs. Crossland's interest in the Smith estate (even though the contract was for her benefit) by permitting Chandler & Jones to charge the insurance items against her, so as to bring them under the influence of the agreement of November 23, 1896. I further find that Mrs. Crossland never ratified any such act, because she had no knowledge of it until the controversy arose. For the same reason she is not estopped. I further find that the contracts of insurance were purchased by Chandler & Jones on the sole credit of Mr. Crossland, and were charged to him alone on the books, and that they can look to him alone for payment. Wadsworth v. Hodge, 88 Ala. 506, 7 South, 194.

"The result is that the plaintiffs must have judgment. I think further that the $60 policy was canceled, and for that rea

son plaintiffs must recover, as well as for the reasons above stated.'"

Under this special finding the court rendered judgment in favor of the plaintiffs. From this judgment the defendants appeal, and assign as error the several rulings of the trial court upon the evidence, and the rendition of judgment in favor of the plaintiffs.

Watts, Troy & Caffey, for appellants. Lomax, Crum & Weil and J. M. Chilton, for appellees.

HARALSON, J. 1. The cause was tried by the court without the intervention of a jury, the parties by their attorneys of record having filed an agreement in writing with the clerk, waiving a jury, and requesting a special finding on the facts. The judge made his special finding, and it is set out in the transcript. If parties by their written agreement merely waive a jury, it is provided by statute, "the finding of the court upon the facts shall have the same effect as the verdict of a jury." Code, § 3319.

Section 3320 provides, that if a special finding is requested, the court must state in writing the facts as it finds them, and such statement, with the judgment of the court, must be entered on the minutes.

Section 3321 provides, that either party may reserve, by bill of exceptions, any ruling, opinion, or decision of the court, to which an exception could have been reserved, if a trial by jury had not been waived, and is entitled to an appeal from the judgment of the court, as if the judgment had been rendered on the verdict of a jury; and if the finding is special, on appeal, the supreme court must examine and determine whether the facts are sufficient to support the judgment.

In a case of this character, the trial being by the court without a jury, there can be no charges excepted to, to be set out in the bill of exceptions. The only remaining office of a bill of exceptions, therefore, would seem to be to reserve and present for review, the rulings of the court on the admission or exclusion of evidence, such as, by its erroneous admission or exclusion, the mind of the court might have been influenced in rendering a judgment it might not otherwise have rendered, thereby raising a presumption of injury to the party excepting. Bank v. Chaffin, 118 Ala. 246, 24 South. 80.

In Quillman v. Gurley, 85 Ala. 594, 5 South. 345, the court said: "If there is a special finding of facts, the supreme court must on appeal examine and determine whether the facts are sufficient to support the judgment." This means, certainly, the facts as found by the court. It was further said in that case, that "The operation of the statute being, that when the parties waive a trial by jury, and consent that the court may be a trior of the facts, there shall be the same right of appeal and reservation

of questions for revision on appeal, as if there had been a trial by jury, and the judg ment had been rendered on their verdict, and no other or greater, the appellate court cannot review the sufficiency of the evidence to support the judgment, except in the single instance of a special finding on the facts, entered on the minutes as provided by statute."

In Betancourt v. Eberlin, 71 Ala. 461, it was held that before the enactment of these statutes, if the parties waived a jury and submitted the determination of the facts to the court, the decision of the court thereon was not examinable on error. Referring to the special finding when requested by the parties or either of them, the court said: "When the finding is special, the statute operates to open for examination the sufficiency of the facts as found [italics ours] to support the judgment, and casts on the appellate court the duty of reviewing and examining the decision of the primary court on them. The finding in the present case was special, on the request of appellant, the defendant in the court below, and whether the facts as found, reduced to writing and entered on the minutes, will support the judgment rendered, must be inquired into and determined." It thus appears that where a special finding as here, has been required of the court, by the parties, this court may not go behind the facts as found by the court to see whether or not from the evidence introduced, it correctly found the facts. If such could be done, we fail to see the necessity for a special finding at all. We must, therefore, determine whether the court rendered a proper judgment on the facts found. Bibb v. Hall, 101 Ala. 79, 87, 14 South. 98.

What was said in Brock v. Railroad Co. (Ala.) 26 South. 335, in the last paragraph of the opinion, in reference to the finding in that case, seems to be in conflict with what we have above said, and to that extent that decision is misleading.

2. We have read the facts as found by the court, and are of the opinion, after careful examination of them and the legal principles applicable thereto, that upon the facts alone as found, unaided by any extrinsic evidence appearing in the bill of exceptions, the court did not err in the judgment rendered, and it must, therefore, be affirmed. It would subserve no good purpose to elaborate our views in following counsel in the many questions they so elaborately discuss. Affirmed.