66 Ala. 311 | Ala. | 1880
It is clearly settled in this court, that when the Probate Court has commenced the exercise of jurisdiction in the matter of a settlement, or other function connected with the administration of an estate, the Chancery Court can not intercept and oust such jurisdiction, unless the issue or inquiry present some question of equitable cognizance, which the Probate Court, by its powers and organism, is incompetent to determine. But the executor or administrator can, in no case, carry such proceeding into the Chancery Court, without assigning a special equitable reason therefor. Teague, v. Corbitt, 57 Ala. 529; Whorton v. Moragne, 59 Ala. 641; Weakly v. Gurley, 60 Ala. 399.
The proceedings and pleadings in this cause raise two questions: First, did the executor, Newsom, tender to Mrs. Johnson, the legatee, the amount of the pecuniary legacy given to her by the will of her father, Mr. Rutland? Second, did Ne, with ordinary diligence, keep the identical money thus tendered, separate and to itself, and was he robbed of it during the war by Federal soldiers, without negligence on his part? Each of these inquiries raises a question of fact— simple, naked fact — which the Probate Court was as competent to hear and determine as the chancellor is. The rules of evidence are the same in each court, and the present bill furnishes no ground for transferring the litigation to that court. The chancellor did not err in sustaining defendant’s demurrer to complainant’s bill.
We are asked to take a farther step, and pronounce on the merits of Newsom’s defense to' the petition filed in the Probate Court. It may be that an executor, as to the safe custody of assets, even money assets of the estate, is not held to the extreme liability of an insurer. There is, at least, much plausibility in the defense attempted, if sustained by proof. — 2 Wms. on Executors, 1420; Hill on Trustees, 853 [573]; 2 Story’s Equity Jur. § 1269 ; State, ex rel. v. Meagher, 44 Mo. 356; Fudge v. Durer, 51 Mo. 364. Proof, however, in such case, should be closely scanned. We consider it unnecessary to determine this legal question.
The onus of proving the robbery rested with Newsom. A great number of witnesses were examined, whose testimony bears on this question. We have examined it with care, and it has failed to convince us such robbery was committed. The defense failing in this vital particular, it must fall to the ground. The testimony shows there were ample other assets
The decree of the chancellor is affirmed.