39 Ala. 70 | Ala. | 1863
In the partial settlement made by the administrator on the 20th of July, 1850, he is credited by $42 95, paid Agnes Jones ; and on his final settlement he is credited with $260 paid Agnes Cunningham, who is shown to have been the same person as Agnes Jones. It is clearly proved that the administrator never paid Mrs. Cunningham more than $143, in all; that of this amount, $43 was paid in money, and the balance in property, most of which was estimated at prices far beyond its value; and that the receipt for $260 to which Mrs. Cunningham put her mark, was not read to her, and she did not know what it contained. The act of the administrator in seeking and obtaining credit for $160 which, according to the evidence, he must have known he had not paid out, was a fraud upon the estate, which justified the chancellor in opening the final settlement, at the instance of the distributees, who were non-residents, and had no actual notice of the settlement, or of any of the proceedings in the probate court. Cowan v. Jones, 27 Ala. 317; Loomer v. Wheelright, 3 Sandf. Ch. 135 (153); Reigel v. Wood, 1 Johns. Ch. 402; Kennedy v.
Decree affirmed.