The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1903-03-14
Opinions Rendered
By Supreme Court

. .s-s-s'
Kenan ct al. vs.. Graham. Extr.-F'inal
Settlement of Estate-Appeal from Pro-
bate Court of Dallas.
l. Wills. Construction; Heirs; residuary
Legatee.-A will contained no residuary
clause A codieil provided for the division
of the residee of the estate, pro rata.
among the heirs" of testatrix resident
In the state of Alabama. A later codicil
bequeathed household effects which had
not heretofore been disposed Of includ-
ing a bequest of table-linen to the wife
of nephew of testatrix, who had not
been mentioned in the will or first codicil,
but who was a resident of Alabama.
Held That she was not a residuary
legatee under the will.
2. Executor, When Chargeable With
1nterest.-An executor, who was one of
the reslduary legatees under a will, in
the administration of the estate, collect
ed rents from real estate money due
on mortgages dividends on stocks and
proceeds of the sale of stocks, and made
distribution from time to time of funds
received, leaving small balances in his
hands at different times, but did not sell
the real estate until about eight years
after his appointment owing to a de-
pressed condition of real estate values,
and a short time thereafter filed his ac-
counts for final settlement mo partial
settlements having ever been made).
Held: That he was not chargeable with
interest on the funds In his hands al diff
ferent times.
g. Same; Code Sec. 219 200; Anticipating
Fees; Interest. - An executor or admin
-.
titled to only 2R per cent on the amount
of receipts and disbursements and on
the appraised value of personal property
undistributed. is not entitled to antic-
ipate his fees and use the money: and
If he does so, he is ehargeable with in
terest from the date OF such appropria-
tion
4. Executor; Ordinary Services Com
MISSIONS Amount Of How Determined
In determining the amount of commissions
to be allowed an executor or admins
traitor for ordinary services performed by
him, the court should take into consd-
GRAFTON the condition and value of the
estate. the loss Of time, risk and respon-
sibility, which the nature of the trust
demands and which is actually incurred
and should allow such a reasonable re-
Enumeration, not exceeding the maximum
statutory allowance, as a prudent and
Just man would in view of the circum-
stances of each case, consider fair COM
pensation, without however, being gov
erned by business charges usually made
for like services.
8. Same; Extraordinary Services.-Tf ex-
traordlnary services are rendered, these
may be compensated for, beyond the
statutory allowance, owing to the par
ticular services rendered, and the attend
ing conditions and circumstances.
6. Same; Provisions of VIII for Liberal
Payment.-A provision in a will that the
executors are to be literally paid for
their services, will never authorize an al
lowance for ordinary services, in excess
of the maximum statutory allowance
the Legislature having determined that
to be a fair and liberal allowance.
Z. Same; When Commissions Excessive
Where an executor performed no eX-
traordinary services, but only rented out
real estate, collected the rents there
from, and the dividends on stocks, and
sold the real estate and some of the
stocks, and the debts of the estate We're
small. an allowance to him of per cent
on the amount Of receipts and dsburse-
ments and upon the appraised value of
personal property distributed, was ex-
cessive, being double the statutory limit.
8. Same EYidence.-On the settlement
of an estate, where no extraordinary
services are performed, evidence that the
executors services were reasonably worth
a certain per cent or a certain sum Din
excess of the statutory limit of 21s per
cent? is not admissible.
g. Same.-On the settlement of an es-
tate evidence is admissible as to the
services rendered by the executor in
and about the administration, as giving
information on which to base an allow
ance within the statutory limits,
Reversed and remanded. Opinion by
HARRISON, j.
Osborne Admrx., vs. Alabama Steel and
Wire Company-Action for Damages for
Personal Injury to Employe-Appeal
from the Circuit Court of Jefferson.
l. Contributory Negligence; Sufficiency
of Plea.-A plea of eontrbutory negli
gence must aver a state of facts to which
the law attaches the conclusion of neg
lgence.
2. Employer and Employee Contributory
Negligence Choosing Less Safe of Two
Ways; Notice.-Before an employee can
be charged with contrlbutory negligence
In choosing the less safe of two routes,
1t must appear that he had notice of
the danger or defect making 1t less safe.
3. Same Contributory Negligence by
Continuing in Dangerous Employment
Though an employee may be negligent in
failing to give notice of defects In his
employers ways, works. etc. when to do
so is necessary for his own protection,
or in falling to use due care to avoid dam
continuance In the service for which he
was employed. though with knowledge
of such defects and Gauger, cannot as
between him and the employer, be ac-
counted an act of negligence.
T. Same Volunteers "A person who