King v. Brown , 108 Ala. 68 ( 1895 )

HEAD, J.

Upon final settlement of an administration items of account allowed in a previous settlement are presumed to be correct. — Code § 2149. It necessarily follows, that the burden of overcoming this presumption rests upon the distributees. — Dickie v. Dickie, 80 Ala. 57. The evidence upon which, the probate judge acted, in rendering the decree appealed from, is not brought before us, and hence there is nothing to show that the burden was met by the appellants. — Mims v. Mims, 39 Ala. 716. Error is not presumed, and if necessary to support the decree, we would intend that the distributees agreed and consented to the allowance for extraordinary services, and also to the item of credit for taking care of their mother. For the like reason it does not appear that any error was committed in the allowance to the administrator of the sum twenty dollars on account of the fee charged by his attorney for representing him on the final settlement. In the absence of evidence we presume conclusively that every fact essential to justify that allowance was made satisfactorily to appear. We have considered the above questions, because they are raised and argued by counsel. Such questions can only be properly presented by bill of exceptions. It is not proper to set forth, in the decree, the rulings of the court and the allowance or charge of items of account. The decree of the probate court is in proper form. It was not joint as counsel for appellants suppose, but each distributee had a separate recovery of his share, although embraced in one entry in regular succession. This is the usual and orderly method of entering decrees in final settlement of estates, and was a full compliance with the statute. — Code § 2161.

It was not necessary that the husband of one of the female distributees be made a party to the settlement, nor that her share be adjudged against the administrator in favor of herself and husband, for her use. Former decisions of this court, holding such to be the proper practice, were based upon the married woman’s acts of 1848 and 1850, allowing the husband the enjoyment of the income of her estate for his life, without liability to account therefor. — Smith v. Hooper, 20 Ala. 245; Key, Admr. v. Vaughn, 15 Ala. 497 ; Green v. Fagan, Ib. 336. Prior to those acts, decrees for the wife’s distributive share were required to be rendered in favor of wife and husband jointly. — Blackwell v. Vastbinder, 6 Ala. 218 The reason of these rules no longer existing, the rules have likewise ceased. The wife must sue alone for the recovery of her separate property.: — Code, § 2347. The husband is not her trustee, nor entitled to the income from her estate. It results that the assignments of error are without merit, and the decree of the probate court is affirmed.