Harwood's Adm'r v. Pearson
60 Ala. 410
Ala.
1877
Check Treatment
BRICKELL, C. J.

The correctness of the decree of the Court of Probate depends wholly upon the evidence, all of which is set out in the bill of exceptions. The decree should not be disturbed, unless it is so unsupported by the evidence, and the legitimate inferences from it, that a court having authority would feel justified in setting aside the verdict of a jury founded on the same evidence, in a controversy ^involving the same issues.—Kirksey v. Kirksey, 41 Ala. 626

The fact to be ascertained is, whether the note of the intestate to the appellant had been paid in her life. "When a credit is claimed by an executor, or administrator, and its validity is disputed, the law casts on him the burden of supporting it. If it be a debt he has paid to another, the existence and payment of the debt must be shown.—Gannt v. Tucker, 18 Ala. 27; Savage v. Benham, 11 Ala. 49. "When he claims to retain for a debt due himself, the existence of the debt must be clearly established. If those contesting his right to retain admit the validity of the debt, or, not successfully controverting it, rely on the fact of its payment, the burden of proof rests on them. They stand in the attitude of a defendant pleading payment of a debt, the existence of which is not matter of dispute, on whom the burden of proof always rests. — 2 Green. Ev. § 518.

It is not insisted there is any direct evidence of the pay*413ment of the note. Payment is an inference, wbicb, it is insisted, must be drawn from tbe facts, tbat after its execution tbe appellant remained in possession of tbe lands, tbe purchase-money of wbicb is tbe consideration of tbe note, and tbat tbe intestate subsequently conveyed them to him. However just sucb an inference might be, if tbe facts stood alone, it is repelled, when another, distinct and independent consideration for the conveyance of the lands is shown by tbe recitals of tbe deed, and tbe contemporaneous facts. Tbe repeated recognitions of tbe debt by tbe intestate, after tbe execution of tbe conveyance, continuing until a short time before her death, are inconsistent with any sucb inference. There is no evidence in this record, which supports tbe conclusion tbat this note bad been paid.

Tbe decree must be reversed, and tbe cause remanded.