Henderson v. Renfro , 31 Ala. 101 ( 1857 )

STONE, J.

— "We do not think this record discloses any error available to the appellant.

Under the testimony of Dr. "Watkins, we think it extremely doubtful if the boy Jack should have been permitted to do any labor during the year 1855. After the opinion of the physician was obtained, it would have been highly improper to hire him out, irrespective of his health. If he had been so let to hire, and injury to him had been the consequence, we will not say the administrator would have rendered himself liable. Administrators must be clothed with some discretion in the management of the property of the estate committed to their charge; and if they employ the same skill and care as an ordinarily prudent man would employ in reference to his own property, they should not be held accountable. The testimony of the witnesses who had the best opportunity of knowing the facts, did not place the value of Jack’s services above the sum fixed by the probate court; and that court did not err in this particular.

As to the hire of the slaves during the month of January, and up to the first Monday in February, 1855, the record does not disclose enough to show that the administrator should have been charged for it. There was in this estate a will. What its provisions are, we do not know. Neither does it appear from this record that the estate was in a condition to be settled up, even if the will was silent on the question. From anything that appears, it may have been the duty of the administrator to rent out the land during that year; and we think the law requires us to presume, in favor of the ruling of the primary court, that such was his duty. The proof shows the real estate was greatly in need of repairs; and we do not doubt the authority of the administrator, whenever it is his duty to rent out land, to put upon it such reasonable repairs as are necessary to make it command fair rent. See Pinkard v. Pinkard, 24 Ala. 250; Gerald v. Bunkley, 17 Ala. 170; 2 Story’s Equity, § 1269-. In this case,* there is no proof that the administrator could have hired out the slaves for the short period which would elapse before the day of public hiring; but, oh the contrary, the proof tends to show that he made efforts to do so, and did not find a hirer. TJnder these circumstances, we think he deserves commendation for employing the- slaves in repairing the plantation, and thus relieving the estate of the expense of their board.

It may be contended on the other side, that inasmuch as the administrator obtained an allowance for repairs put on the plantation by Simmons, and inasmuch as part of those repairs were put there by the slaves of the estate, the administrator should have been charged for their hire. The record does not inform us that any allowance was made for the labor [performed by these slaves. On the other hand, it does appear that the account for repairs was materially reduced. ¥e think we would do no violence to the established facts in this record, by presuming that this reduction was made on account of the labor of the slaves of the estate. At all events, we do not feel at liberty to presume that any of said allowance was for labor performed by them. If such was the fact, it should have been expressed in the record. The rule is too well established to be further a subject of debate, that this court will indulge all reasonable presumptions which the record will allow, in favor of the ruling of the court below. Error will not be presumed, but must bo affirmatively shown. — School Commissioners v. Godwin, and authorities cited, 30 Ala. 242.

Under our statute, the administrator is authorized to hire out the slaves either publicly or privately. — Code, § 1751. This section leaves it optional with him which course he will pursue. Having himself the option, of course he will not be accountable for loss that may result, unless it be shown he acted in bad faith.

The principles above stated dispose of the first and second assignments of error. The third assignment presents more difficulty. The item, voucher No. 1, charged by the administrator, was reduced. In such case, the tdode (§ 1814) declares, that the costs of the contest must be paid by the administrator. James Martin, David Martin, and Alex. Hill, were witnesses in reference to that voucher; and the third assignment of error questions the propriety of the decision of the probate court, which allowed to the administrator a credit for the fees of those witnesses. If the question rested alone on these propositions, we should unhesitatingly declare that the probate court erred in this allowance. But the question is not thus simple. The bill of exceptions recites, that these witnesses were all summoned on the part of said Renfro for the purpose of being examined as witnesses with regard to voucher No. 1, “and as witnesses to rebut the motion of said Henderson to charge the said Renfro with the hire of said negro Jack.” The motion to charge Renfro with the hire of the slave Jack, was made under section 1824 of the Code; and the Code gives no special direction as to costs on a motion made under this section. The costs in such case must be held to be within the enlightened discretion of the probate court. Now, these witnesses were summoned for two objects. If the expenses of their attendance be divisible, so far as they were witnesses for one object the administrator was liable for the expense; and as to the other object, the expense was within the discretion of the court. The statute has made no provision for such a case as this; and we know of no rule of law which will allow us to travel beyond the statute, and divide the costs. Even if we were to undertake such division, no rule has been furnished to us, nor can we conceive of any, which would enable us to adjust the proportions. In such case, we think it must be left to the decision of the primary court, before whom the trial takes place. If he tax the administrator with the costs, as properly pertaining to the contested item, which he reduces ; or, if he charge the costs against the estate, as pertaining to the effort to charge the administrator under section 1824, — in either case, we think his judgment is free from any error which can be taken advantage of in this court.

The judgment of the probate court is affirmed.

"Walker, J., not sitting.