Jackson v. Day

80 Miss. 800 | Miss. | 1902

Terral, J.,

delivered the opinion of the court.

This is an application by O. W. Day, claiming to be a creditor of the estate of L. B. Day, deceased, to have Mr. Hárper, sheriff of Newton county, appointed administrator of said estate. L. B. Day had been deceased some months, and his heirs were proceeding to settle the. estate without administration, when C. W. Day filed his petition in this behalf. It wás based upon the claim that he held a note of decedent executed to him on the 20th of May, 1897, for $276.23. The appellants, heirs of L. B. Day, deceased, resisted the application, upon the g’round that said note had been materially altered. The clerk, upon the ex parte application of C. W. Day, had appointed Mr. Harper administrator of said decedent, and the contest arose upon a motion before the chancery court to confirm the act of the clerk in vacation, which was resisted by appellants. Evidence upon both sides was taken and submitted to the court, and he confirmed the action of the clerk, whereupon Mrs. Jackson and her brothe# appealed.

The question for decision was submitted to the' chancellor in due course of law, and we see no ground for disturbing his finding and decision. It is not plainly certain, upon inspection of the note, that it has been altered since its execution, and the burden of proof to show such alteration was upon the appellants. In Ellison v. Railroad Co., 36 Miss., 572, it is said: “In order to raise the presumption that the instrument has been altered, it is necessary that it plainly appear from the face of it that it has been altered. It is not sufficient that it is probable that an alteration has been made, but it must be manifest to the inspection of the jury that it has been made.”

Affirmed.