Harwood v. Harper , 54 Ala. 659 ( 1875 )

BBICKELL, C. J.

This was a proceeding by the appellant, as administrator, with the will annexed, of Elizabeth L>. Harwood, deceased, for a final settlement of his administration. On the .hearing in the court of probate, several of the legatees contested the legality and justness of a credit claimed by the appellant for the principal and interest of a promissory note, made by the testatrix in her life, payable to the appellant as executor of the will of Samuel M. Harwood ; and also claimed to charge the appellant with the sum of five hundred dollars, entered as a credit on said note, as in fact money loaned by the testatrix to the appellant. The objections to the note were that it was barred by the statute of limitations, and had, as alleged, been in fact paid. Much evidence was introduced in support of and in answer to the objections, and on the point whether the credit on the note was a payment thereon or a loan to the appellant. The rulings of the court to which exceptions were taken, relate to the admission of evidence, and the rendition of a decree excluding the note as a credit, and charging the appellant with the five hundred dollars endorsed thereon as a credit, ■as in fact a loan to him.

It is not disputed that the note was made by the testatrix, and on a sufficient consideration, payable to appellant, as executor of Samuel M. Harwood. It bears date June 6th, 1859, and is payable twelve months thereafter, with interest from date. The credit endorsed is of date July 27th, 1871. The time of the death of the testatrix does not appear, otherwise than from the statement of one witness, that it was in the latter part of the year 1871. Deducting the period o'f time elapsing between January 11th, 1861, and the 21st September, 1865, as prescribed by Ordinance No. 5 of Convention of 1865, the statute of limitations perfected a bar of the note, on the J.8th day of March, 1871, before the alleged payment was'made. A partial payment, prior to the Code, would, if made before the bar of the statute was perfect, prevent its running, and it would also remove the bar if complete. — Watson v. Dale, 1 Port. 247; McGehee v. Greer, 7 Port. 537. These authorities also established that though the payment was endorsed on the note, the party relying on it to prevent or remove the bar of the statute, must affirmatively prove that the payment was made, and its date.— Knight v. Clements, 45 Ala. 98; 2 Green’s Ev. § 440. The Code has now changed the law, so that a partial payment will not remove the bar when it has attached, though it will prevent it from attaching until the prescribed period elapses after the time of its making. An unconditional promise in writing only, will now remove the bar of the statute. — E. C. § 2914. The note was, therefore, barred in the life time of the testatrix, before the partial payment, and that payment, if made, had not the effect of reviving it as a debt. It seems that at common law, though there is some contrariety of decisions on the point, an executor or administrator could retain for a debt due himself, though it was barred by the statute of limitations. — 2 Williams’ Ex’rs, 902; 1 Lomax on Ex’rs, 654. This court, in the case of Knight v. Godbolt, 7 Ala. 304, affirmed that the administrator had the right to retain for any just debt due himself, although within the bar . of the statute. The reason given is, that he could pay the debt of another, which was barred by the statute, and of consequence could pay himself. The decision to which we have referred, having stood for thirty years, cannot now be departed from. It was not material, therefore, on the contest in the court below, whether the note was barred by the statute of limitations or not. The fact of its execution on a sufficient consideration, not being disputed, the only inquiry was, whether it had been paid. It must be borne in mind, however, that an executor or administrator cannot revive a debt barred by the statute, nor retain for one due himself, so. as to affect the devise or descent of real estate. — Bond v. Smith, 2 Ala. 660; Movers v. White, 6 John. Ch. 360.

The note was certainly assets of the testator of appellant, given for the purchase money of lands sold by appellant as executor, in his representative capacity. That the appellant had made a final settlement of his executorship, and on such settlement had been charged with the note in the life time of the testatrix, as if he had collected it from her, was shown by the record of the settlement, and does not appear to have been controverted. Thereby the note became his property, and he could have sued thereon, in his own name, or pleaded it as a set off to an action against him, founded on any debt due from Mm individually to the testatrix. — Hall v. Chenault, 13 Ala. 710; White v. Word, 22 Ala. 442 ; Waldrop v. Pearson, 42 Ala. 636; Dunlap v. Newman, 47 Ala. 439. The note was not thereby extinguished as insisted by the counsel for the appellee. It remained a subsisting debt against the testatrix, she being afterwards the debtor of appellant individually, and not in his representative capacity. It was not material whether he had paid the amount of the note to those entitled to distribution of the assets of his testator or not. Satisfaction of their demands against him for the amount of the note, as charged in Ms final settlement, was not essential to his right of property in the note. That right became perfect when the decree was rendered, charging him with it, on his final settlement.— Waldrop v. Pearson, supra. It was not proper, therefore, for the court to permit the appellees to inquire of the appellant, on his cross-examination, whether he had distributed the money mentioned in the note, nor, when he answered negatively, and assigned as the reason it was not distributed was the indebtedndss of the estate to him, to inquire further into the manner of that indebtedness. All such evidence was wholly irrelevant. The record of the final settlement disclosing he had been charged with the note, whether that charge was proper or improper, or whether he had fairly accounted for the note to his cestuis que trust, or had retained it in satisfaction of an unjust demand, was foreign to the issue before the court. The decree on the final settlement, ascertaining a balance due him from the estate, although he is charged with the note, was conclusive of his right, and incapable of impeachment in this proceeding.

Nor was it permissible, so far as this record discloses, for the court to permit the introduction of appellant’s petition for the sale of the lands of his testator, the purchase money of which was tpe consideration of the note; nor the will of his testator ; nor the report of sale, nor the distribution of slaves. All these records were irrelevant, and their introduction could produce only confusion, obscuring the real inquiries before the court. The deed made by the appellant as executor, conveying the lands to the testatrix, though it does not recite the payment of the purchase money, was admissible as a fact, having some tendency, however slight, to show the purchase money, the consideration of the note, had been paid, and was properly admitted. The deed made by the testatrix to the appellant of the lands she had purchasecl, expresses a specific consideration — the transfer of the bond for title of a third person, to lots in the town of Gainesville, and the covenant of the grantee to pay the unpaid purchase money of such lots. No evidence was offered that payment of this note was its consideration. Such a consideration is wholly variant in character from that expressed. Whether it could be proved in opposition to the terms of the deed is not a question presented. — McGehee v. Rump, 37 Ala. 655; Murphy v. Br. Bank Mobile, 16 Ala. 90.

The deed was irrelevant, and ought not to have been received in evidence.

The evidence of the witness Pearson, that he had intermarried with one of the sureties on the note, a daughter of the principal, and had not been notified of the existence of the note, during the life of the principal, was not admissible. It had no bearing on the inquiry, whether the note had been paid. There was no inability to pay on the part of the principal, and no reason shown to exist for giving him notice. It is apparent that the principal, the testatrix, and the appellant, her son, lived in the most intimate and confidential relations, and that to her alone he looked for payment, and not to the sureties,'who probably were required and accepted in the first instance only to comply with the statute regulating sales of lands by executors or administrators. No reasonable inference of payment could be drawn from the fact that the witness had not been notified of the existence of the note. The giving such notice to him, if it could have served any purpose, would only have induced the witness, for the protection of his wife, to insist that it should be collected by suit, or his wife released, or to have demanded indemnity from the principal. The appellant would have avoided, rather than subjected his mother to such vexation.

The re-examination of a witness, or permitting a party to propound to his own witness a leading question, is matter of discretion, in the primary court, not revisable on appeal.

One of the contestants against the objection of appellant, was permitted to prove that in July, 1871, the appellant borrowed of the testatrix five hundred dollars in gold. The objection was founded, we suppose, on the exception in the statute, “ that in suits or proceedings by or against executors or administrators, neither party shall be permitted to testify as to any transaction with, or statement by the testator or intestate, unless called to testify thereto by the opposite party.” — E. C. § 2704. In Kirksey v. Kirksey, 41 Ala. 626, the final settlement of an executor or administrator, was held a proceeding within the meaning of this statute, and that the distributees were not competent as witnesses to testify in reference to the genuineness of the intestate’s signature to a note claimed by the administrator to be due him. The reason assigned is thus stated: “ To allow the administrator to testify as to the signature to the note in controversy, would be allowing him to testify as to a transaction with the intestate, within the meaning of the statute, and he would, therefore, be an incompetent witness, under the act, for that purpose; and hence the other parties must be held to be incompetent.” The first case arising under this statute, which came before this court, was that of Stuckey v. Bellah, 41 Ala. 700, a suit against a defendant individually for a conversion-of a gold watch, which the plaintiff had an election to commence against him as an administrator, or as an individual. The plaintiff claimed the watch as a gift from the intestate, and was received as a witness to prove it. It was held the purpose of the exception in the statute was to prevent a living-party from establishing, by his own evidence, a right in himself, against the dead, who could not be heard in answer to him; and to remove the temptations to fraud and perjury, which the opportunity of testifying without the fear of contradiction would afford. This purpose, the plaintiff having an election of suit, could not defeat, by suing the personal representative individually, rather than in his representative capacity. The evidence of the living, as to transactions with, or admissions or declarations of the dead, is in its nature ex parte ; and if it be right that the living, who can confront each other, should be witnesses when they have a direct, immediate interest involved, it cannot be just to permit them to testify when they alone have the opportunity of being heard. In the operation of the rule of exclusion,- there must be mutuality. If the party is excluded from establishing h claim in his own favor against the dead, those who have succeeded to the rights of the dead, and stand to the living in the relation of adverse suitors, must not be permitted to fix on him a liability to the dead, which he cannot repel by Ms own evidence. If the contestant was a competent witness to prove the loan by tbe testatrix to tbe appellant, be must bave been competent to disprove it, or to prove its payment to ber. Tbus be would, in violation of tbe words of tbe statute, and of its policy, bave been testifying as to a transaction or statement bad witb tbe deceased, under tbe temptations wbicb an acquittance from liability would present. His competency to prove payment or to prove any transaction or statement witb tbe testatrix would not be insisted on, and without destroying all mutuahty in tbe operation of tbe statute, tbe contestant was equally incompetent, and tbe court erred in admitting ber evidence.

Tbe court of probate, on tbe settlement of administrations, determines questions of fact without tbe intervention of a jury. Its action upon tbe whole evidence tbus becomes matter of law, revisable on error. It has grown to be a rule of practice not to reverse its judgment on tbe facts unless it is manifestly wrong. In Boyle v. Boyle, 23 Ala. 544, it is held, when the whole evidence is set out, its judgment should not be reversed, if rejecting illegal evidence wbicb may bave been-received, enough remains to support it. In Mims v. Sturdevant, 23 Ala. 664, tbe decree of tbe court was reversed for tbe single error of admitting incompetent evidence, though it was urged tbe admission of such evidence worked no injury, as without it there was abundant evidence to support the decree. The court said in answer: “It is true the bill of exceptions sets out much other evidence, but it is not for this court to say that tbe proof was abundant without tbe evidence in question, and that therefore no injury could arise from the admission of tbe testimony. Tbe rule of this court is, that it will presume injury from error, unless tbe record itself rebuts the presumption. This tbe record, in our opinion, does not do. We may bave our own private opinion as to wbicb side has tbe advantage in the weight of testimony offered, but we cannot pretend to say tbe court below was not materially influenced by tbe evidence in question. If tbe defendants in error would avail themselves of tbe principle which they invoke, they should show by tbe bill of exceptions, or in some other manner by tbe record, that tbe court below was in-no respect influenced by tbe testimony admitted, or that no injury resulted to tbe plaintiff in error from tbe ruling of tbe court.” Again it is said, tbe question was one purely of tbe competénCy of tbe evidence offered. In Kirksey v. Kirksey, 41 Ala. 626, without any reference to former decisions, it was said, in revising tbe decree of tbe court of probate on a final settlement, each assignment of error relating only to tbe admission or rejection of evidence, that “ in passing on the merits of the case, we must look at the evidence, as the probate judge should have done; and, consequently, no injury will result from the admission of illegal or irrelevant testimony.” The decree of the court of probate was reversed, and yet the only errors the court could have committed was in the admission or exclusion of evidence. It cannot be- doubted that when illegal evidence is admitted, or legal evidence excluded, on a trial before a jury, the error creates presumption of injury, compelling a reversal, unless the presumption is repelled. We do not propose now to examine the various decisions on the point, but a critical analysis of them will result in this, that the evidence admitted, or rejected, discarding all considerations of its credibility, was merely superfluous or cumulative, when the presumption of injury has been regarded as repelled. The court has never assumed to enter the jury box, and say the jury ought not to have been affected by the evidence admitted, or could not have been by the evidence excluded, if it had been admitted. It is enough that the one or the other could have had a legitimate influence on the jury. How far . the jury ought to have been controlled by the one or the other is a matter resting in the honest, enlightened and just discretion of the court, on a motion for a new trial. In our system, the judge is often substituted for the jury, and is made not only to declare the law, but is the trier of facts. From his judgment an appeal lies to this court. The record discloses all the evidence, and that parts of it were admitted, against the party complaining of error. How can this court pronounce judgment ? A judgment should never be reversed here, unless it can be said, in the language of the common law writ of error, there is “ manifest error to the great prejudice ” of the party appealing. When error is found, the presumption of prejudice or injury arises, and unless it is clearly repelled, a reversal must follow. If illegal evidence has been admitted the judgment must be reversed, unless the remaining evidence is without conflict, and supports the judgment. When there is conflict, and the judgment can be supported only by an inquiry as to the credibility of the witnesses, and the preponderance of evidence, it is better to submit that question anew to the decision of the primary court, which can have the witnesses before -it, and observing their demeanor, is the better able to pass on their credibility. Discarding the evidence we have declared inadmissible, that remaining is in painful conflict, and without expressing an opinion as to its weight, we are not prepared to render judgment on it.

For the errors noticed, the decree must be reversed and the cause remanded.