¶1(concurring specially):
¶2From the posture of the record before us, we concur that the cause must be remanded and that Mrs. Rawlins cannot be charged the entire .attorneys’ fee. The majority holds that she cannot be charged any portion of the $11,310.77 fee paid to the attorneys for the estate. Perhaps this is true. To be sure, if the parties plaintiff in the insurance claim each employed their respective attorneys who contributed to the ultimate success of the litigation, absent any agreement to the contrary, then the fee distributed to the estate’s attorneys should be chargeable solely against the estate. The record is unclear as to these facts. We believe that on remand of this cause further findings of fact should be made as a basis for an appropriate order of distribution of the proceeds of the in- ' surance recovery among the respective parties.
¶3As we understand the opinion of the majority, Mrs. Rawlins performed her obligation under the contract with Mr. Cook to procure insurance on the subject property, which insurance was to protect the interests of the buyer (Mrs. Rawlins), the seller (Mr. Cook) and the mortgagee (the bank) as their respective interests appeared therein.
¶4We further understand from the majority that at the time of the loss Mrs. Rawlins had an equity interest in the property in the amount of $10,500, which was the down payment thereon. Although it is not clear, it appears that her equity may have been diminished by the $1,000 which she received as earnest money from Mr. Gober.
¶5We do not have the record of the proceedings which resulted in the award by the jury of $60,000 in the consolidated-suit by all claimants brought against the insurance companies. We do understand that the parties agreed to accept $59,000 in discharge of all claims against the insurers.
¶6It appears that this $59,000, in some manner not absolutely clear from the record before us, became subject to disbursement by the court in the suit brought by Mrs. Rawlins against the estate of the seller seeking specific performance.
¶7At the time of the decree ordering this disbursement, the balance due on the mortgage held by the bank was $31,118.58; Mrs. Rawlins’ equity in the property was either $10,500 or $9,500; and the balance due the estate of the seller was apparently $28,381.42.
¶8We are aware of the general rule that where the buyer goes into possession under a binding contract for the sale of improved realty, and, before the transfer of the legal title is consummated, the improvements are destroyed by fire, the loss falls on the buyer as the owner of the equitable title. It follows from this general rule that, if the property were insured, the proceeds normally would go first to satisfy the seller's interest with the excess, if any, to the buyer. Alabama Farm Bureau Mutual Ins. Serv. v. Nixon, 268 Ala. 271, 105 So.2d 643 (1958). See also 12 Ala.L.Rev. 379; Thompson on Real Property, Vol. 8A, § 4449 (1963). Likewise, where expenses of litigation are incurred to effect recovery from the insurance company, it necessarily follows that this expense would normally fall on the buyer.
¶9But this latter conclusion contemplates that the recovery of the proceeds is a result of the buyer’s efforts or that his inaction necessitated the seller’s efforts in that regard.
¶10In this case the record shows that the action against the insurance companies was initiated by the bank and is silent on the quantity and quality of the buyer’s participation. It is equally silent as to the extent ■ of the seller’s participation and also silent as to any acquiescence by the buyer in the seller’s role in obtaining the recovery.
¶11*737Nothing in the record indicates that the bank’s attorneys or the buyer’s attorneys were paid any part of the recovery for their services in that litigation.
¶12From the record before us, although it is not entirely clear, apparently the efforts of all of the interested parties, the seller’s estate, the bank, and the purchaser, were instrumental in the success of the lawsuit brought against the insurance companies, which resulted in the recovery of a $60,000 jury verdict — later reduced by agreement to $59,000.
¶13Yet, from this $59,000 the trial Court awarded to the. attorneys representing the estate of the seller an attorney’s fee in the amount of $11,310.77.
¶14The record does not clearly indicate that the recovery of the insurance proceeds was occasioned by the efforts of the attorneys representing the estate of the seller alone. In fact, one could infer from the references to this lawsuit that it was a joint effort by all of the interested parties which produced this result.
¶15This being the case, we can find no justification for the trial Court’s having awarded, out of the proceeds of that recovery, a fee only to those attorneys. In fact, it appears to us that the parties were entitled to attorneys’ fees, if at all, based upon the pro rata share in the insured property which each party had at the time of the loss. In other words, the proceeds of the insurance policies was to be paid to the parties as their respective interests in the property then appeared. Of the recovery, the bank was entitled to the balance due on the mortgage. The remainder should have been prorated between the buyer and seller as their respective interests then appeared, and the attorneys for each of these parties should have had their fees awarded on the same pro rata basis as the interests of their clients had in the property covered by the insurance.
¶16We find nothing to justify the Court’s having awarded the attorneys representing the estate of the seller an award of fees, apparently without regard to the interest which the estate had in the insured property.
¶17Disregarding the attorneys’ fee disbursement for the moment, it appears that had the $59,000 been applied to the parties proportionately as their interests then appeared in the property, the bank would have received $31,118.52; and the seller’s estate would have been entitled to some $28,381.42, apparently the balance due under the original contract. It is readily apparent, then, that the proceeds of insurance, for which Mrs. Rawlins had paid the premiums would have very nearly equated the amount owing on the mortgage and the balance due the seller under the original contract.
¶18In other words, the total of the amount due the bank and the balance due under the contract to the seller was $59,499.94. Mrs. Rawlins had paid $10,500; when this is added to the $59,499.94, the sum is $69,-999.94 — within cents of the agreed upon $70,000 total purchase price.
¶19The net result, then, of the disbursement decree is to leave Mrs. Rawlins with an obligation to pay the seller $28,381.42, with only $16,097.59 left, after the award of attorneys’ fees to the seller, with which to meet that obligation.
¶20She, therefore, under the terms of that decree is bearing the total cost of recovering the proceeds of the insurance while the record would indicate that this recovery was the joint efforts of all parties interested in the property. Thus, it would seem inequitable to require her to shoulder the entire burden, but rather more equitable to require the parties to share that burden based upon their respective interests in the insured property.
¶21In other words, based upon the above factual presentation, the parties would be entitled to their attorneys’ fees incurred in the procurement of the judgment against the insurance companies in the same pro*738portion that the amount of the recovery hears to the pro rata interest of each of the respective parties in the insured property.
¶22Our concurrence in the result of the majority is limited to our agreeing that the cause should be remanded for a determination of what part, if any, of the total award of attorneys’ fees in the insurance litigation should be borne by appellant.