Radford's Adm'r v. Morris , 66 Ala. 283 ( 1880 )

STONE, J.

Upon the final settlement of a guardian’s accounts, the previous annual or partial settlements shall be presumed to be correct, but may be impeached for fraud, or for any arithmetical or other error. — Code of 1876, § 2772. But, to raise these to the dignity of prima facie proof, they must be made in conformity to law. — 1 Brick. Dig. 971, § 809. Ex-parte statements, or [ex-parte] allowance of the accounts of an executor or administrator [or guardian], are unauthor- ' ized, and are nullities. — lb. 972, § 810. What is claimed as an annual settlement in this case, has scarcely any of the attributes of a settlement. The record shows only an account current, sworn'to, filed, and ordered to be recorded. There is even no decree, ascertaining a balance ; and if the judge of probate made any order in regard to it,- farther than to order it recorded, the record fails to inform us of it. The judge of probate did not err in ruling that the certified transcript did not show any partial settlement previously made.—Legatees of Horn v. Grayson, 7 Por. 270.

One other question is raised : Does the record sufficiently show that the Probate Court erred in the matter of allowance to the guardian for the board of the ward ? We think that, under our various rulings, we are forbidden to hold that the court below erred in the conclusions he drew from the testimony. The bill of exceptions sets forth the testimony of several witnesses, pro and con. If we were informed, or were permitted to infer, that all the evidence given at the trial is before us, we are not prepared to say we would concur with the court below in the conclusions there announced. But, we are forced to draw every reasonable inference in support of that court’s correct ruling, which the record does not repel. When it is sought to have this court to review and reverse the finding of a primary court on facts, it is not enough that we are unable to perceive and affirm the correctness of its ruling. That much we presume, until the contrary is shown. To obtain a reversal, the record must affirmatively show error. Applying this principle to this case, we can not know that the Probate Court erred in its conclusions, unless we knew -the evidence from which the conclusions were drawn. There may have been much other testimony, not shown in this record; and we must presume there was such testimony, in the absence of a record statement to the contrary. To authorize a reversal of a primary court’s findings on fact, the record must affirmatively show that the testimony — all the material testimony — on which it is based, is before us. That, this record fails to do ; and we feel bound to affirm the Probate Court’s finding.- — 1 Brick. Dig. 781, §§ 118, 119, 120; Walker v. Nunnelly, at the last term; Key v. Vaughn, 15 Ala. 497; Williams v. Gunter, 28 Ala. 681; Gunter v. Williams, 40 Ala. 561; Jones v. Jones, 42 Ala. 218; Ashly v. Martin, 50 Ala. 537.

Affirmed. This judgment to take effect as of January 23d, 1878.

Briokell, C. J., not sitting.