Parker's Heirs v. Parker's Adm'r , 33 Ala. 459 ( 1859 )

STONE, J.—

It is not necessary, in this ease, that we ■■should consider whether there are any cases in which we would reverse, on account of an amendment of the account-current, allowed on the trial in the probate •court. Evidently, the allowance of amendments should not be permitted to prejudice the distributees ; but, when the amendment operates a surprise to them, and new matter is brought up, of which they had not had notice, and which they can probably repel or explain, equal and ■exact justice would require, that the trial should be adjourned, if desired by them.

In the present case, it does not appear that any new matter was brought forward, of which the parties had not been notified. On the contrary, it is shown that the amendment was lodged in the office of the probate court, and, in fact, was placed in the account-current, within a few days after the account itself was filed. The case was twice continued; and we suppose, if the contesting distributees had shown to the court that they were ignorant ■of the claim set up in the amendment, until after they had entered upon the trial, and had further shown that they could, on another trial, produce material testimony, adverse to the allowance of such claim, the probate court would have granted them a continuance. The present record fails to show that the distributees were surprised, or that they desired a continuance.

In what we have said above, wTe do not wish to be •understood as asserting that we would, under any circumstances, review a decision of the probate court, allowing amendments, or granting or refusing to grant a continuance.

[2.] We can perceive no valid objection to- tbe form of' the question and answer, which sought to prove the value-of Bhese 0. Parker’s services. Those services ran through a series of years; and notwithstanding they did not employ all his time, still they were continuous in their character. We think it was permissible to prove their yearly value. A similar question was objected to in Reese v. Gresham, 29 Ala. 91. This court ¿eld the question- free-from error.

[3.] Nor do we think the court erred in the allowance of interest on the wages for each year.—See Stoudenmeier v. Williamson, 29 Ala. 558.

[4.] Bhese O. Parker-and his father were living separate and apart from each other. The son, we have a right to-suppose, had attained to majority, and hence was not under the control of his father. The father was amply solvent, and had the means: of comfortable support. Whatever demands filial duty and affection might have made upon the son, we know no rule of law which requires-him to perform work and labor at the request of his father, without compensation. We have carefully examined the testimony,- and although the witnesses differ-very materially in their estimate of the value of the services, the allowance made by the probate court is probably a very just medium between the extreme figures given by the witnesses. We do not feel authorized to disturb-his conclusions.

The- testimony fully authorized the allowance made for-the two mares.

We have not considered the question of the exclusion of evidence. Enough of testimony that is free from-, objection is found in this record, to sustain the judgment: of the court.

Judgment of the probate court affirmed..