to it for any damage caused by his negligence or his mistake in the performance of his services. Railway Co. v. Clanton. 59 Ala. 392. The defendant, being primarily liable for the payment of the draft, if by design on his part, or by mistake of the plaintiff, known to defendant, he only paid a small portion of the draft as the full amount, and took up the draft as paid, and the bank has paid the entire amount to the holders of the draft, and the plaintiff has paid it to the bank, his claim to be reimbursed is based on sound principle. Of course, if the defendant paid the entire amount of the draft, the plaintiff is not entitled to recover. On this material question of fact the evidence was in conflict, and, being in conflict, the question should have been submitted to the jury. When there is a conflict in parol evidence, the affirmative charge in favor of either party should not be given. Reversed and remanded.

HALL . PEGRAM.

(Supreme Court of Alabama. January 8, 1889.)

1. EXECUTORS AND ADMINISTRATORS-SURCHARGING ACCOUNTS.

Testator, the executor, and legatees were residents of Virginia, where letters testamentary were granted. Ancillary letters of administration c. t. a. were issued to a resident of Alabama, where there were assets and debts. In answer to frequent requests by the executor, the administrator explained his failure to remit by saying that he must retain the funds to meet local debts, about which he informed the executor fully, but said nothing about being a creditor himself. Just before the expiration of the time for filing claims, he presented one for $12,000, but, though a partial settlement was soon after made, the court was not asked to allow it, and $10,000 was found to be in his hands. Twelve years later, at the final settlement, the claim was allowed, and $4,000 was found due him from the estate. The executor and legatees were ignorant of the claim until after final settlement. An attorney was employed in Alabama for the estate, who informed the executor of the claims made and suits pending against the estate, but he did not appear to know of this claim, and he died before the final settlement. The published notice of final settlement did not contain the names of the executor or legatees, nor had they actual notice of it, and they were neither present nor represented at it. Held, that a bill to surcharge and falsify the account was maintainable, under Code Ala. § 3837, providing for the correction of an error in the settlement of an estate to the injury of any interested person, without his fault or neglect, by bill in chancery.

2. SAME-BILL TO SURCHARGE-PARTIES.

Such a bill may be filed by the executor against the administrator, and no other parties are necessary.

3. DEPOSITIONS-SUPPRESSION IN EQUITY-REVIEW ON APPEAL.

The action of a chancellor in suppressing a deposition after allowing a witness to be re-examined provisionally is discretionary, and not reviewable on appeal.

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN, Chancellor.

A bill was filed by R. G. Pegram, as executor of the will of John D. Ragland, deceased, against Fred Hall, as administrator of the estate of the said Ragland, de ceased, to have the final settlement of the said Hall's administration annulled and set aside, and have corrected certain errors of law and fact alleged to have been committed in the said final settlement of the said administration. The defendant demurred to the bill on the ground, among others, that there was an omission from the bill of essential parties to this case. The chancellor overruled the demurrer, and upon the final hearing on the pleadings and proof granted the relief prayed for in the bill. From the decree of the chancellor the defendant appealed.

G. L. & H. T. Smith, for appellant. Overall & Bestor, for appellee.

STONE, C. J. John D. Ragland, a resident of Virginia, died April 2, 1872, in Mobile, Ala., leaving a considerable estate, and debts in each state. He left a will, which was probated and established in each jurisdiction. The will v.5so.no.11-14

disposed of the testator's entire estate, real and personal, and appointed R. G. Pegram, of Virginia, to be executor, who, in the year 1872, qualified, and took upon himself the trust. The will also vested in Pegram the title to all testator's real estate, and made him trustee thereof for the equal benefit of testator's only surviving heirs at law and devisees,-his three daughters, all residents of Virginia. Both the executor, Pegram, and the three daughters, have ever since continued to reside in Virginia. During the same year1872-Fred Hall, a resident of Alabama, was by the probate court of Mobile county appointed administrator of the said Ragland's estate with the will annexed, and took upon himself the administration of said estate in Alabama. His administration was limited to personal assets in Alabama, and to the payment of Alabama debts; for the will vested the title of all the realty in Pegram as trustee. On the 10th of March, 1874, Fred Hall made a partial settlement of his administration, at which time there was ascertained to be in his hands $10,100 in excess of all the disbursements he had made as administrator. In this settlement commissions were allowed to him on all receipts and disbursements up to that stage of the administration. He made no other partial settlement. On the 28th day of August, 1886, Fred Hall made a final settlement of his administration of said estate, and at such settlement nothing was found against him. On the contrary, it was ascertained and decreed that his disbursements exceeded the assets he had received by the sum of $4,260, and it was decreed that the estate owed him that sum. He thereupon resigned the administration. His resignation was accepted by the court, and an order made discharging him from the trust.

The present bill was filed in November, 1886, by Pegram, the executor, and prays to have corrected certain errors of law and fact charged to have been committed in Hall's final settlement, to his own advantage, and to the prejudice of Ragland's estate. The equity of the bill depends on section 3837 of the Code of 1876, and its proper interpretation. The language of that section is as follows: "Where any error of law or fact has occurred in the settlement of any estate of a decedent to the injury of any party, without any fault or neglect on his part, such party may correct such error by bill in chancery, within two years after the final settlement thereof." This statute is found without change in each of the Codes of 1852, 1867, and 1876. A clause is added to it in the Code of 1886, but it does not affect this case. In the earlier constructions of this statute, this court was inclined to make it highly remedial and beneficial. Cowan v. Jones, 27 Ala. 317; Morrow v. Allison, 39 Ala. 70; Meadows v. Edwards, 46 Ala. 354; Monnin v. Beroujon, 51 Ala. 196. But this rule soon gave way to stricter requirements. In Gamble v. Jordan, 54 Ala. 432, a case under the statute we are considering, the principle decided is correctly expressed in the second head-note, as follows: "When the jurisdiction of the probate court has attached, its decree on final settlement of an administration cannot be vacated or annulled by a resort to equity, unless the complainant shows some special equitable ground of relief, whereby, by reason of accident, mistake, or fraud, unmixed with fraud on his part, he was prevented from interposing the matters relied on before decree in the probate court." In the same case it was said: "The jurisdiction of the court of probate was called into exercise when the administrator filed his accounts and vouchers for a final settlement, and a day was appointed for the settlement. ** The decree not being impeached for fraud, and no accident or mistake intervening, preventing the appellees from presenting to the court all the matters on which they now insist as grounds for relief, and all of which were involved in it, the decree is a bar." And in some of the cases which support this proposition notice of the day set for settlement was given only by publication, and this was held to include infants for whom guardians ad litem were appointed, as well as adults. Otis v. Dargan, 53 Ala. 178; Waring v. Lewis, Id. 615; Stabler v. Cook, 57 Ala. 22; Boswell v. Townsend, Id. 308;

*

Jones v. Fellows, 58 Ala. 343; Bowden v. Perdue, 59 Ala. 409, 413; Lowe v. Guice, 69 Ala. 80; Hatcher v. Dillard, 70 Ala. 343; Lyne v. Wann, 72 Ala. 43; Foxworth v. White, Id. 224; Stoudenmire v. De Bardelaben, Id. 300; Waldrom v. Waldrom, 76 Ala. 285; Tutwiler v. Lane, 82 Ala. 456, 3 South. Rep. 104; Cawthorn v. Jones, 73 Ala. 82; Massey v. Modawell, Id. 421; Vincent v. Martin, 79 Ala. 540. Under our decisions, cited above, my opinion is that we have in effect declared that the statute we are considering has accomplished no result whatever. This I attempted to show in Bowden v. Perdue, 59 Ala. 409. The interpretation it has received at our hands gives to it the same scope and extent in correcting error in judgments as was done by the chancery court without the statute. French v. Garner, 7 Port. (Aia.) 549; 1 Brick. Dig. p. 666, § 376; 3 Brick. Dig. p. 347, § 230; Headley v. Bell, 84 Ala. 346, 4 South. Rep. 391. While, as shown in Bowden v. Perdue, I would prefer to give to the statute a more liberal, remedial interpretation, the construction has prevailed too long, and has been asserted too often, to justify a departure from it. We speak, of course, of the statute as it existed before it was amended by the Code of 1886, § 3536. To what extent that amendment will require changed interpretation it is not our intention to intimate any at this time. We have, as our rulings show, given full effect to the statutory requirement that any injury complained of, to be remediable under this statute, must have been suffered "without any fault or neglect" on the part of the party complaining. Yet there are cases in which relief has been granted. If the administrator has made misrepresentations, has misled or deceived his beneficiary, and thus thrown him off his guard, or has resorted to any artifice by which he has intentionally averted scrutiny of his account, and has thus obtained an undue advantage in his settlement, chancery will grant relief, if timely application be made. Chancery relieves against the most solemn judgments, if procured by fraud. Humphreys v. Burleson, 72 Ala. 1; Mock v. Steele, 34 Ala. 198; U. S. v. Throckmorton, 98 U. S. 61.

A summary of the facts of this case is necessary to a proper understanding of the question we have in hand. During the season of 1871-72, the testator, Ragland, was engaged in purchasing horses and mules at Selma, and shipping them to Mobile by steam-boat. Selma is near the center of the state, and Mobile on the southern border, distant, the one place from the other, 150 miles, or more; more than double that number of miles by water. This is common knowledge. The correspondence of the parties, which is in evidence, shows that Ragland's purchases in Selma were with a view to a sale in Mobile, that Hall was his agent at the latter place, and that the horses and mules purchased at Selma were shipped to Hall. Ragland drew on Hall to meet the purchases he made, and, apparently, to meet some other liabilities. Ragland's drafts on Hall during the season aggregated $12,000 or more, all of which were promptly paid by Hall. There was a correspondence between Pegram, the executor in Virginia, and Hall, the administrator in Alabama, commencing in 1872, and continuing up to a short time before Hall's final settlement, in 1886. From that correspondence we derive the following information: Ragland's estate owed debts to Virginia creditors in excess of personal assets, subject to Pegram's primary control. Pegram, executing the domiciliary administration, and exercising its rights, claimed that there was an excess of personal assets in Alabama beyond the claims of Alabama creditors, and hence he desired that Hall should turn over to him some part of the Alabama personal assets to meet the Virginia debts, that he, Pegram, might save from sale and sacrifice real estate in Virginia, which he alleged was very valuable. His requests and appeals in this behalf commenced in 1872, and were repeated in almost every letter, till near the close of the administration. As early as November 18, 1872, in a letter from Pegram to Hall, is this language: "Can you give me an idea when I may look for a remittance from you? You must not deem me importunate, for if you had any idea of the extent to which I

am annoyed by constant inquiries from creditors, you would acquit me of the charge of being unnecessarily troublesome to you." And in a letter from same to same, dated June 24, 1878, is the following language: "I would also like to know the present status of your administration upon Ragland's estate. Have you settled up, or are there still outstanding claims to be paid, and if so, have you the assets to meet them, or will some of the real estate have to be sold to pay debts?" If this letter was ever answered, it is not shown.

We copy the following extracts from letters written by Hall to Pegram at the several dates: February 18, 1873: "I had determined to forward the proceeds of the sale of the stock, together with all the money which I had received, until advised by Judges Jones and Dargan not to do so." May 30, 1873: "I would very willingly remit you a portion or all of the money which I now hold as administrator, in order to quiet the Virginia creditors, but, as I have said before, that I am obliged to retain it until the suits which are now pending will have been decided. There are two suits, one concerning a cotton claim for over five, and another for board for five thousand. I have compromised one for lawyer's fees for over five thousand dollars. You would be astonished were you to see the amount claimed by lawyers for fees and costs of courts. It seems that the estate of Ragland will be made nearly bankrupt if it has to pay all these claims. I have determined, if compelled to pay these claims, to get them reduced as much as possible. I will do everything in my power to promote the interest of the children of Mr. Ragland, and will always act in accordance with advice of Judges Jones and Dargan in all matters relating thereto." November 24, 1873: "I cannot remit you any funds of the estate at present, as I cannot tell what claims may be filed against the estate in the probate court before the time allowed by law expires, and the suits now pending against the estate are decided." (The 18 months allowed for filing claims expired December 15, 1873.) May 29, 1874: "I have, within a few days, with the advice of Judge Jones, compromised a claim of near four thousand dollars by paying eighteen hundred dollars and the costs, & there was a verdict given agt. the estate in our city court yesterday for about six thousand dollars, & there are other suits pending, and the other claims agt. the estate for a large amount." On the 13th day of December, 1873, two days before the expiration of the 18 months allowed for filing claims, Hall, the administrator, filed a claim in his own favor for over $12,000. The claim was sworn to by him as being due, and was made up of the items of payment he had made during the season 1871-72 on Ragland's drafts, some written requests, and other alleged oral requests. None of these drafts or requests, or the letters which generally accompanied them, furnish any evidence that Ragland was obtaining a loan or accommodation from Hall. They were simply drafts and requests preferred and forwarded, indicating nothing of the state of accounts between them, save the legal implications which arise when one man gives a draft on another, and that other accepts and pays it. 1 Daniel, Neg. Inst. § 534. It is positively testified by Pegram that he never knew or heard of Hall's claims described above, until notified of it after it had been allowed in Hall's final settlement. And his testimony is equally explicit that he had no knowledge or notice of the time set for the settlement. There is no testimony in conflict with this, and no attempt was made to prove that either Pegram or either of the distributees was present or represented on the final settlement, or that either of them had notice that an account current had been filed for final settlement, or when it would take place.

Other facts bearing on the question we are considering should be noticed. On the 24 February, 1874, Hall filed his account current and vouchers for a partial settlement. On the 14th of the same month he wrote Pegram as follows: "I have filed petition in probate court for a partial settlement of my ac

counts as administrator of the estate, & a hearing will be had on the 4th of March next." The hearing was not had on the 4th, but was continued to the 10th. The following is an extract from the decree rendered: "And it appearing to the court from proper evidence that due notice of the time and nature of this settlement has been given by publication for three successive weeks in the Mobile Daily Register, a newspaper published in this county, and that a copy of said paper containing such notice has been sent by mail, postage paid, to Richard G. Pegram, trustee under the will, Annie W. Martin, and Martin, her husband, Virginia J. McCaw, and William McCaw, her husband, and Mary Flora Martin, addressed to them at their several post-offices, as set out in the petition filed with the accounts; and they being present and represented by William G. Jones, Esq., their attorney," etc. At this partial settlement there was a balance found in the hands of the administrator of $10,100 over all disbursements, costs, and commissions; and although his individual claim against the estate, of over $12,000, had been filed in court near three months before, he did not then claim any credit therefor, nor bring it to the attention of the court. The account current for final settlement was filed July 29, 1886, and the settlement was had August 28th next following. No letter was written to Pegram notifying him of this settlement, nor was any paper containing the notice of day set for trial sent to him, or to either of testator's daughters, his legatees. In fact, neither the executor nor either of the legatees is mentioned in any of the proceedings pertaining to this settlement. Code 1876, § 2509, subd. 3; Code 1886, § 2135. The following is an extract from the decree rendered: "And it appearing to the satisfaction of the court that heretofore, on the 29th day of July, A. D. 1886, the said Fred Hall filed in this court his account, vouchers, evidences, and statements for the final settlement of his administration of said estate, and that, pursuant to the order of the judge of said court then made, notice of such settlement was given to all persons interested by the publication thereof in the Mobile Register, a daily newspaper published in said county, for three successive weeks, and that such notice contained the name of Fred Hall, the administrator, the name of John D. Ragland, the deceased, the day appointed for the settlement, and the nature thereof, and that the same was to be, as proposed, a final settlement of Fred Hall, administrator of said estate.' The settlement was thereupon had, in the absence of any one representing the estate, and the said claim of over $12,000 was allowed to Hall as a credit. The errors complained of, and which this bill seeks to eliminate from the credit side of the account, are the said claim in favor of Hall of over $12,000, an item of $500 allowed the administrator as so much paid an accountant for making out the account current, and certain commissions alleged to have been improperly allowed to him.

For appellant (defendant below) it is contended that Pegram and the beneficiaries are, under the circumstances of this case, chargeable with notice of Hall's claim, or, what is the same thing, with neglect in not finding it out. We will first address ourselves to the inquiry to what extent the services of the attorney, William G. Jones, must be regarded as a factor in the solution of this question. It is shown that he had died before the final settlement was had. Mr. Jones, in one of his letters, describes himself as attorney for the estate, and the record tends strongly to confirm this. He advised Hall in reference to the administration, and rendered services to him pertaining to the estate. Hall several times paid him fees for services rendered the estate, and the payments were allowed as credits in his settlement. On the other hand, the record discloses that Mr. Jones represented Pegram and the legatees in the partial settlement in 1874. Hall had separate counsel in the person of Mr. E. S. Dargan, whose advice he followed in all cases where the two administrations were or appeared to be antagonized. Mr. Dargan also died before the final settlement was made. We feel authorized to say that Jones' retainer