Opinion
6 Div. 568.
May 16, 1940. Rehearing Denied June 29, 1940.
Appeal from Circuit Court, in Equity, Jefferson County; E. M. Creel, Judge.
H. M. Powell, of Birmingham, for appellant.
There is no duty upon the administrator to intercept rents from real estate of decedent. Johnson v. Moxley, 22 Ala. App. 1, 113 So. 651, 654; Nelson v. Murfee, 69 Ala. 598, 603. There must be claim or notice that rents would be intercepted for administrative purposes. Lee's Adm'r v. Downey, 68 Ala. 98; Stovall v. Clay, 108 Ala. 105, 20 So. 387. The administrator is not chargeable with rent of realty unless he intercepts and actually collects it; he should not be charged with debts, choses in action or the like until he receives the money unless same has been lost through his negligence or lack of good faith.
Harsh, Harsh Hare, Oliver Henderson, and Mead Moebes, all of Birmingham, for appellees.
When an administrator assumes control of decedent's lands he must account for such rents as he collects or should have collected by the exercise of reasonable diligence. Code 1923, § 5846; 24 C.J. 140; Smith's Distributees v. King, 22 Ala. 558; Patapsco Guano Co. v. Ballard, 107 Ala. 710, 19 So. 777, 54 Am.St.Rep. 131; Boyte v. Perkins, 211 Ala. 130, 99 So. 652; Clark v. Guard, 73 Ala. 456; Walsh v. Walsh, 231 Ala. 305, 164 So. 822; Powell v. Labry, 210 Ala. 248, 97 So. 707; Ex parte Stephens, 233 Ala. 167, 170 So. 771; In re Dolenty's Estate, 53 Mont. 33, 161 P. 524; Harrison's Adm'r v. Harrisons Distributees, 39 Ala. 489.
This appeal is from an interlocutory decree of the circuit court of Jefferson County, sitting in equity, in the matter of the administration of the estate of J. R. Adkins, deceased, overruling the exceptions of the administrator to the report of the register, auditing and stating the administrator's account on a partial settlement. The appeal is authorized by and is within the provisions of § 6087 of the Code 1923.
We are of opinion that the circuit court erred in confirming the report of the register in so far as it charged the administrator with "rent on store-house in Dolomite from November, 1935, to February, 1939 — 39 months at $15.00, a total of $585.00," and "interest on $585.00," $60.52. There was a pending petition for the confirmation of a sale of the property made in 1935, and the evidence shows that the purchaser had expended a large sum, comparatively, in the improvement of the property increasing its value much above its value when the tentative sale was made. There is no evidence of bad faith either on the part of the administrator or the purchaser. The effect of confirming this charge is to mulct the administrator in damage and garner into the estate the property in its improved condition to the detriment of the purchaser. This is inequitable. The sale, if the price agreed to be paid for the property in its then condition was reasonably fair, should be confirmed by the court, and the purchaser should be charged with interest on the purchase money according to the contract rate, and the property charged with a lien for the full payment of the purchase money.
We have examined the other matters complained of and are not able to affirm error therein, but we do not affirm the decree in these respects as they are subject to re-examination on the hearing of the application for final settlement of the estate.
For the error noted the decree of the circuit court is reversed.
Reversed and remanded.
THOMAS, FOSTER, and LIVINGSTON, JJ., concur.