Parker v. McGaha

11 Ala. 521 | Ala. | 1847

ORMOND, J.

The allowance to the administrator of the items charged for board and provisions furnished the widow and children, and- for money paid for pork, com and bacon, for the use of the family of the intestate, were wholly unauthorized upon this settlement. Whatever claims the administrator may have against the widow and children, for money or other articles furnished them during his administration, he cannot bring it in as a credit in his account as administrator. Such a blending of his accounts as administrator, and quasi guardian, would produce such confusion as to render it impossible to ascertain the share of the several distributees. [Willis v. Willis, 9 Ala. 330.] So also the charge of f 35 for articles purchased by the widow at the sale, which so far from being an item of credit, should have been included in the items of charge of the sale of his intestate’s effects.

We cannot say from the record whether the charge of $18 for witness fees was correct or not. It is obvious such a charge might be correct, and as it is not shown to have been improperly allowed, we must presume in favor of the correct action of the orphans’ court.

The mode by which the interest was charged against the administrator on the amounts received is wholly unwarranted, by any thing appearing in the record. Our statute requires the orphans’ court, in settling with an administrator, to charge him with interest from the time the money comes to his hands, unless he expressly denies upon oath that he has used the funds, and when he does so deny it, those interested in the estate may controvert the statement, and have an issue made up to try the fact. [Clay’s Dig. 198, § 28.] No such denial appears in this case, and by reference to the inventory it is shown, that $600 admitted in the account to have been received, was due the 1st January, 1836, and yet upon a settlement made nearly ten years afterwards, the whole amount of interest charged is $36 10. The administrator will also be entitled to interest on all sums disbursed by him, see this question considered in Brazeale v. Brazeale, 9 Ala. 491.

The decree of the orphans’ court must be reversed, and the cause remanded for further proceedings.