Siniard v. Green , 123 Ala. 527 ( 1898 )

DOWDELL, J.

The appeal in this case is taken from the decree of the probate court of DeKalb county on the final settlement of the accounts of appellee as administrator. The errors complained of and presented by the bill of exceptions-consist in the action of the court in refusing the motion'of appellant to charge the administrator Avitli interest, and in the allowance of two items of credit AVliick were objected to on the hearing by appellant.

Upon the filing of his account for final settlement, the administrator made the necessary exculpatory affidavit required by the statute, (section'210, Code, 1896), and this Avas not contested by appellant.

The administration Avas one cum testamento annexo, and continued over a period from the 11th of June, 1894, the date of the grant of letters, to November, 1898, the date of final settlement. On the 23rd of October, 1895, the administrator filed a bill in the chancery court of DeKalb county to have the Avill construed, and to have certain lands described in the will, which were encumbered with a trust, sold for the purpose of carrying out the trust. The appellant was the sole beneficiary under the Avill, and she voluntarily becariie a party to the bill, admitting the averments of the bill, and joined in the prayer for the relief sought. A decree Avas rendered ordering a sale of the lands, the terms of such sale being, one-tliird cash, and the balance in equal instalments at one and tAvo years AAdth interest. The sale was made on the 28th day of December, 1895.

The bill of exceptions also shows that in a few months after the collection of the balance due on the deferred payments for the purchase money, the administrator filed his account for a final settlement. Under these facts we cannot say there was such unreasonable delay in making the final settlement as to charge the administrator with interest in the face of his exculpatory affidavit.

There was a conflict in the evidence as to the two items of credit, which were contested. The trial court had these parties before it, affording to that court opportunities in determining the weight of the evidence, the degree of credit to be accorded to each, in hearing them testify, and observing their manner and conduct while testifying, not given to this court. It has become the settled rule of this court not to disturb the judgment of the trial court upon the facts, based upon the testimony of witnesses before that court, unless the record presents such a case as would require the setting aside of a verdict of the jury rendered on the same evidence.

The original receipt designated as voucher No. 25, is certified under the rules to this court for our inspection. We have inspected the same, and after such examination, we are not prepared to differ with the trial court .in its conclusion as to the explanation of the erasure as testified to by the administrator being satisfactory and reasonable. Indeed, the physical conditions and appearances of this paper seem to indicate that the erasure was made in the reqeipt, before the same was signed by the appellant, Mrs. Siniard.

Immediately upon the auditing and passing of the account, the administrator paid into court the amount ascertained to be due by him, and thereupon a decree was entered by the court, which, after reciting the auditing and passing of the account, and the amounts ascertained to be due by the administrator, also recited the fact of the payment into court by the administrator of the said sum so ascertained by the court to be due. While this was irregular, and the'proper and better practice would have been to have entered up a final decree in favor of the appellant, Mrs. Siniard, and then entered satisfaction thereof on its payment by the administrator to the probate judge under section 3369, still there is no reversible error, no injury appearing to have resulted to the appellant.

We find no error in the record and the decree of the probate court must be affirmed.