The Montgomery advertiser., 1903-08-02
Opinion by sharpe. J.
TAYLOR ct al. v. CROOK. Admr.. ct al. | Bill for review--Appeal for the Chancery |
 1R SnTt

Court of TalIadega.
 l. Authority of executors and admins trators to bind estate.--Without express power an executor or administrator can not, by any act or conduct. create a charge or liability against decendents estate; nor can he. by any payment, pro- mise or admission. suspend or remove the bar of the statute of Limitations So far as 1t affects a charge on land descended or devised.
 q Liability of lands descended or de- vised to payment of debts; statute of 1imitations.--Neither lands descended nor devised nor other proceeds can be sub jected to payment of the claim against a decedent's estate, unless within the period of the statute of limitations adversary proceedings are suly commenced and prosecuted against the personal repre- sentative or the devises and a judicial subjection of the lands to the payment of the specific claims.
 B. Same; same; rights of heirs or de- vises.--In order to subject lands des- cended or devised to the payment of claims agains ta decendent's estate or to charge the heirs or devisees with such claims, proceedings of an adversary char acter must be instituted setting up the debt and seeking . decree for the sale of the lands for its payment: and such pro- ceedings must be commenced within the period of the statute of Limitations.
 {. Same: same; petition to ascertain amount of attorneys fee. In proceed ing for the sale of lard.-where an ad- ministrator de bonis non with the will annexed, who had been the attorney rep resenting the executor in propounding and securing the probate of a will, upon his subsequent appointment as such admin istrator had the administration of the estate removed into the Chancery Court. a petition filed in the chancery court by such administrator asking for a reference to the register to ascertain the value of his professional services in propounding and probating the will, is not proceeding to have the lands sold for the payment ,of the fee ascertained to be due for the services rendered.. D a g..s ss -s.s .s 1.
 5. Attorneys fee in probating will when barred by the statute of limitations. Where an attorney who represented an executor in probating will takes no steps to charge the lands of the testator's s estate with the payment of his fee for professional services so rendered within six years from the date of the probate of the will. his right to so charge the lands Is barred by the statute of limita- tons.
 6. Same; not a debt in the nature of costs; statute of ilmitations.--A attor- ney's fee for services rendered in pro- batting a will is not debt in the nature of costs against which the statute of limitations does not run; and an heir or devisee can plead the statute of hmita- tons against such debt. Therefore, a proceeding to subject the lands of an estate to the payment of such fee must be commenced against the owner of the Ia nd Futfhfn the TAPtnA Of IA a4a ktakA nf limitations.
 2. Contracts of executor or trustee; lia- bility of estate therefor; remedy of cred itors.--Contracts with trustees create only q personal liability on the part of the trustee, and, therefore, neither an execu- tor nor other trustee, express or implied can, in the absence of power specifically conferred on him, create any change or impose any liability upo nthe trust estate by any contract or engagement he may make; and if he makes contract which Is beneficial to the estate, the person with whom he contracts has no equity to charge the estate unless the trustee is insOlvent as shown by the exhaustion. of legal remedies against him and the trust estate is indebted to him.
 8. Same; same; attorneys fee for pro- batting will.-Where a person named as executor in will employs an attorney to propound the will and to represent him in probating it, the attorneys fee for his professional services in securing the pro- bate of the will is not a debt against the estate of the testaor.
 g. Bill of review; what can be consid- ered.-While on a bill of rtview for error apparent, 1t is not permitted to look into the evidence to see whether or not it sup ports any conclusions of the court or facts shown by other portions of the record, it is permissible to consult all the facts which gre apparent in the pleadings, fin the process and in its service in orders made, repcrts confirmed and opinions and decrees rendered; and upon such bill the question is whether upon such facts, Sc apparent, the decree Is free from error and can be supported.
 10. Estoppel by judicial proceeding by pleading; dismissal of bill-When a party has defeated judicial proceeding by alleging by pleading a particular state of facts, he can not be heard subsequently to deny or disprove these facts in de- fense of another proceeding; and, there fore, where an appeal from an interio- cutory decree Is dismissed on motion by the appellee upon the ground that the decree appealed from was not final. such party in subsequent proceeding will not be allowed to set I'D that the decree for meriy appealed from was final.
 Reversed and rendered. Opinion bv Tyson, J. Haralson, J., not sitting; Dow dell, J., dissenting.