Abney v. Pickett , 21 Ala. 739 ( 1852 )

LIGON, J.

— There is no error in the charge of the court. The proof is very clear, that the plaintiff’s testator acquired the possession of the note as the agent of Cage, the payee, and that he claimed no interest in it. When Stewart made the partial payment, which he proves he did make, he testifies that Abney spoke of the note as due to Cage. It was never endorsed to Abney, and it is fair and legitimate to infer, that he only held it as agent for the payee until the time of his death. When he received tlie $82 fW from Stewart, he was overpaid the amount he advanced to Bissell to procure the note from him, and was left without any pretext on which to found a claim to the note, or any part of its proceeds; and his executor acted both rightly and prudently when he surrendered it to the executor of Cage, without attempting to litigate his title to it.

Again; the present plaintiff cannot set up any title to the proceeds of the note, even if it were in fact the property of Abney’s estate, for she is an administratrix de bonis non, and it is well settled that such an administratrix is not entitled to tbe assets of tbe testator’s estate, except so far as they remain in specie, and unadministered by tbe executor. Here it is distinctly proved, that Hart bad disposed of this note, accounting with tbe Orphans’ Court for all that be bad received upon it which properly belonged to bis testator’s estate, and receiving credit in bis account for tbe sum be was compelled to pay out on account of moneys which testator bad received on it, above tbe sum be bad advanced to Bissell. If be bad acted improperly in respect to it, be alone was accountable to tbe representative or legatees of tbe estate of Abney. He bad, in fact, fully administered upon it. Swink’s Admr. v. Snodgrass, 17 Ala. 653, and authorities there cited.

But it is contended that tbe facts did not authorize tbe court to charge so pointedly in favor of tbe defendant. We have repeatedly held, that where tbe testimony is clear, and without conflict, and it is only necessary to draw a legal conclusion from it, it is not error for tbe court to charge tbe jury, that if they believe it, they must And for tbe party whose case is thus clearly made out; and such is this casey Hopkins v. Scott, 20 Ala. 179, and authorities there cited.

There is no error in tbe record, and tbe judgment/is affirmed.