Gantt's Adm'r v. Phillips , 23 Ala. 275 ( 1853 )

GIBBONS, J.

The court, after charging the jury that the record was the best and only evidence of the appointment of Elizabeth Gantt to the office of executrix of Robert Gantt, deceased, and of her qualification therein, if said record was in existence, further charged as follows: “Yet, if the jury are satisfied from the proof, that she had been appointed, and had qualified as aforesaid, and that, by the laps® of time, the papers and records of the appointment had been lost or destroyed, so that they were not now to be found, then they might find and conclude that she had been such executrix, without the production of the record or the transcript.” This presents the main question in the cause.

We regard this language as tantamount to saying to the jury that they might, if they chose, from the proof before them, after such lapse of time, presume the appointment and qualification of Elizabeth Gantt as the executrix of the last will and testament of Robert Gantt, deceased. The authorities are very numerous, and particularly in this court, that a record cannot be amended, except by the record.—Thompson v. Miller, 2 Stew. 470; 1 Stew. & Porter 159; Moody v. Kenan, 9 Porter 257. Nor is it competent, as a general rule, to enlarge a record by parol proof.—Brown v. Bartlett, 2 Ala. 30; Binford v. Daniels, 13 Ala 672; Bondurant, adm’r, v. Thompson’s Distributees, 15 Ala. 202; and to the same effect are numerous other decisions of this court. Neither can parol proof be received to contradict or vary a record.—Bishop’s Heirs v. Hampton, 15 Ala. 761. These principles are all conceded, and yet it is believed that none of them come up to the case presented in the charge of the court, as the effect of the lapse of time, in the cases above cited, forms no element. This, it is believed, is of itself sufficient to distinguish the case at bar from the above cited authorities.

Of the effect of the lapse of time, in support of possession, Mr. Best remarks: “ There is hardly a species of act or document, public or private, that will not be presumed in support of possession. Even acts of parliament may be thus presumed, as also will grants from the crown, letters patent, writs of ad quod damnum, and inquisitions thereon, by-laws of corporations, fines and recoveries, the enfranchisement of copy-holds, endowment of vicarages, exemption from tithes, consent of ordinary to composition deeds, &c. So, likewise, the disseverance of tithes by the requisite parties, previous to the restraining statutes, copy-hold customs, admittance to and surrender of copy-holds, and lawful executorship, will be presumed from lapse of time.” — Best on Presumptions 98 § 109.

In the case of Rex v. The Inhabitants of Barnsley, 1 M. & Sel. 377, the facts bear some analogy to the case at bar. The question was, whether a certain pauper and his family had a residence in a certain town or not; and this depended upon another fact, to-wit: whether the assignment made by a certain woman, of articles of apprenticeship of the father of the pauper, was made as executrix of her husband, or simply in her individual capacity. John Gill, the father of the pauper, was bound an apprentice to Thomas Harrison, of the township of Clint, for seven years. He served five years of his time, when Harrison, the master, died. His wife, Elizabeth Harrison, in 1769, assigned the articles to Wm. Bradfield, calling the apprentice her apprentice, which she assigned to the said Bradfield for the remainder of the term. The apprentice went with the said Bradfield, and served the remaining two years. .It was conceded that the validity of this assignment would fix the residence of the pauper, and the Validity of the assignment depended upon the fact whether or not Elizabeth Harrison was or was not the executrix of her husband. The question arose after the lapse of about forty years; and Lord Ellenborough remarked :' “ The assignment (which it is admitted was not at the time required to be stamped) is in its form an assignment by the widow as my apprentice ; and, at this distance .of time, we will presume, if necessary, that she was lawful executrix.”

In this country, courts have gone very far in the same direction.

In Battles v. Holley, 6 Greenl. 145, “after the lapse of thirty years, the authority and qualification of an administrator were presumed from the existence of an inventory and a schedule of claims in the probate office, attested by his oath, and a petition preferred by him to the Court of Common Pleas for license to sell the real estate of his intestate, with the original certificate of the judge of probaté thereon, recognizing him as an administrator, the probate records and files of that period appearing to have been loosely kept, and no other vestige of his appointment being discovered.” The presiding judge in this ’case uses the following language:’ “ The authorities cited for the tenant present cases in which presumptions similar in principle’ have been held to be warranted and sustained. • Public documents may be lost, or destroyed by inevitable accident,' or by the negli-. genee of those who are charged with their custody ; but rights., depending on them, long énjoyéd, are not' therefore to be defeated. Every fair presumption, arising from such enjoyment and other existing evidence, may and ought to he deduced, by which such rights may be upheld. A failure of proof in a recent transaction is not entitled to the same indulgence. It warrants rather the inference that what is not proved .never existed.”

Again, say the court in the same case : “ We entertain no doubt that the jury were well justified in presuming that the administrator was duly appointed and qualified.” The judge at nisi prius told the jury that they would be justified in presuming the regularity of the appointment and qualification of the administrator ; and this charge was affirmed by the appellate court.

In Thomas et al. v. Hatch, 3 Sumner 179, is found the following head note : a Papers from the probate records, showing that a person was treated by the probate court as the lawful guardian of a non compos, will be received as prima facie evidence,' after a long lapse of time, to supply the direct proof of a probate appointment.” “ It is true (says Judge Story) that no commission is produced, or can now be found on the probate records; but other papers are produced from the prohate, records, which show that he was treated by the probate court as the lawful and regular guardian. Thus the court received an inventory of the estate of the non compos from him as guardian in 1792, and as long ago as 1808 it settled and allowed an account with him as guardian. Under such circumstances, there is certainly strong prima facie evidence, after such a lapse of time, to supply the direct proof of a probate appointment, and we all know how loosely in those times the records of the court of probate were in many cases kept.”

In Sims v. Aughtery, 4 Strob. Equity R. 103, the court uses the following language : “ After a possession of twenty-five years, the court will presume a sale by the executor for the payment of debts, an administration de bonis non after Lyles’ death, a sale by such administrator, or almost anything else, in order to quiet the long possession. This is strong language, but not stronger than is warranted by the authorities, or demanded by a stern and imperative public policy.”

Gray v. Gardner, 3 Mass. 399, was a real action by the plaintiff, as heir of his father, against the person in possession of the property. The defence was, that the administrator of the estate had sold the lands by order of the court, and the tenant in possession defended on this title. The heir had acquiesced in the sale for twenty years, but the defendant could show in evidence only the order for tire sale and the sale in fact, without being able to show several other statutory requisitions in such sales. The court trying the cause at nisi priiis instructed the jury, in effect, that they might, if they chose, fr om the evidence before them, after that lapse of time presume the deed made by the administrator, and his proceedings at the sale, regular ; and the Supreme Court, upon that point, say : “ The court are satisfied that the judge’s direction to the jury was correct, and that the jury made a fair and legal presumption.” It will be observed in this case, also, it was shown that the records of the probate office were at the time loosely kept.

In Stevenson’s Heirs v. McReary, 12 Sm. & Mar. 9, which was an action of ejectment for the recovery of lands, will be found the following head note: “ While the rule is well settled, that the probate courts cannot order a sale, unless every thing necessary to give them jurisdiction of the person and of the subject matter appears upon the records ; yet, when an administrator made a sale of real estate of his intestate, gave the purchasers a deed, in which he recited that the steps required by law had been taken, and placed the purchaser in possession; and thirty four years afterwards, the heirs of the intestate brought an action of ejectment for the land ; held, that the court would presume from the lapse of time, and the defendant’s undisturbed possession, that the administrator had complied with the requisites of the law, though in some particulars the records of the prbate court did not show that he had done so; and this presumption will prevail, unless it can be shown affirmatively that the administrator did not sell according to law ; upon proof of which, the presumption would yield;” and further, “ that such a presumption is strengthened, by the proof that the sale took place in the infancy of the government, and that the officers, who- at the time and subsequently had charge of the records of the probate court, were careless and negligent in the discharge of their duties ; and such proof is legal, to show the possibility of the loss of the record.”

These authorities are certainly persuasive to show that, under some circumstances, juries may be allowed, from lapse of time, to presume facts, in reference to records, which the record itself does not show. The question then arises, whether the evidence in the present case authorized the instruction. The facts before the court were, the will of the testator, bearing date in 1818, and probated in 1823; an inventory of the estate, purporting on its face to have been made under the authority and sanction of the court; the appointment of the said Elizabeth Gantt as executrix by the testator; her acting as such from the death of her husband until her own death ; her paying the debts of the estate, keeping the property of the estate together as was directed by the will, and exercising ownership and control over it; her acts and deeds in reference to the property being acquiesced in by the heirs, from the time that she first assumed the management and control of the property, in 1823, until 1845 or 1846, when she died; the acquiescence of the heirs in the defendant’s possession of the slave in question, and in the possession of the father of the defendant, from the year 1841 or 1842 until 1851, when suit was brought, about twenty years ; a bona fide exchange of property and consideration given, with the additional fact that the records of the probate office of Dallas County were loosely kept for a series of years about the time the will was probated : all these facts taken together, in our opinion, make a case well warranting the instruction of the court. Under the circumstances, we consider the court left the question to the jury quite as favorably as the plaintiff was authorized to demand, inasmuch as the jury are told, “if they are satisfied from the proof that the appointment and qualification of the said Elizabeth Gantt as executrix had been duly made by said Orphans’ Court, and that in the lapse of time the papers and records of the appointment had been lost or destroyed, so that they could not now be found, then they might find and conclude that she had been such executrix, without the production of the . record or transcript.” In our opinion, the testimony fully authorized this instruetion, and the plaintiff has no reason to complain of the manner in which the question is left to the jury. There-was, therefore, no error in this instruction of the court. In the case of Rhodes, ex’r, v. Turner & Wife, 21 Ala. 210, where-parties had allowed twenty years to elapse without calling the executor to account, it was held, that the lapse of that time warranted the presumption of payment in favor of the executor-This is only applying the same principle to a different subject. To the same effect is the case of Barnett v. Tarrence, at the present term of this court.

It needs no argument to prove that, if the said Elizabeth Gantt took out letters testamentary, and as the executrix of the estate took possession of the property, and had an inventory returned to the court, the legacy of her life estate thereby vested, unless she expressly dissented from the will. Indeed, her assent to the provisions of the will, under the circumstances, will be presumed, until the contrary is made to appear; and her legacy thereby becoming vested, the remainder over after her life estate became by the same act vested in the other legatees named in the will, and could not by the death of the said Elizabeth revert to the estate of the said Robert Gantt. This shows the correctness of the other affirmative charge excepted to by the plaintiff in error.

The principles of these two charges being thus settled, it follo'ws as a necessary consequence, that court the committed no error in refusing the charges prayed, as the principles involved in these charges are the converse of those already discussed.

The only remaining matter of error, not covered by what has already been said, is the admission of testimony objected to by the plaintiff below. This was the inventory and appraisement, accompanied by the testimony of Craig, the acts and declarations of Elizabeth Gantt and the other legatees under the will and distributees of the estate. All this testimony we consider legitimate, as forming a predicate for the court to leave to the jury, after the lapse of time shown to have existed, the power of presuming, if they thought proper, the legal appointment and qualification of the said Elizabeth Gantt as executrix of the last will and testament of Robert Gantt, deceased.

We find no error in the record, and the judgment is affirmed.