51 Ark. 385 | Ark. | 1888
In 1865 George W. Ethridge died intestate, leaving an estate consisting partly of money. One Johnson administered; and he was ordered by the probate court to loan the money. J. L. Holloway borrowed about $6'oo.oo of it, and he executed his note therefor. The note not having been paid at maturity, the administrator brought suit on it against Holloway and recovered judgment, on which an execution was- issued, and a small part of it was collected. In April of 1877, Johnson as administrator of Ethridge, filed a settlement in which he claimed a credit for the -balance due on the judgment. The credit was allowed and the settlement was confirmed. Sometime after this, on the 10th of August, 1878, the distributees of Ethridge transferred the judgment to James H. Winningham; and still later on (when, it does not appear), the administrator, privately and without the direction of a court, assigned it to A. P. Holloway. In the meantime J. L. Plolloway, the judgment, debtor, died, and John D. Holloway became the administrator of his estate. When he died it is not shown, but it is conceded that he died before the transfer was made to Winningham. In April, 1881, Johnson as administrator of Ethridge, filed his final account current in the probate court and represented therein that he had paid the balance which remained in his hands at the filing of his last settlement, to the distributees of his intestate, and asked a credit and filed a receipt of the distributees therefor. At the next term thereafter the probate court confirmed his settlement and discharged him from further liability as such administrator. Each of the assignees of the judgment against J. L. Holloway, claiming to be the rightful owner of the same, presented it for allowance against the estate of J. L. Holloway. It was not authenticated, as presented by either one of the claimants, by the oaths of the administrator or distributees of Ethridge. It was allowed in the probate court in favor of Winningham, and the administrator of Holloway and A. P. Holloway appealed to the circuit court. In the circuit court the administrator of Holloway moved to dismiss the claim as presented by Winning-ham (i), because he was 'Mot the owner, and (2) because-it was not" properly authenticated by his assignors. The court heard the evidence introduced to support the claim of each claimant and the motion to dismiss, sustained the motion and dismissed the claim as presented by each of the parties, and Winningham appealed.
The questions presented by counsel for our consideration and decision are: (1) Is the executor of James H. Winning-ham the owner of the claim in controversy; and (2) if so, was it legally authenticated?
The statute fails to make any provision for an authentication by an assignor in a case of this kind. So far as the administrator is concerned, he is required to account for all assets which go into his hand under and by the oath he took, when he assumed the burthen of administration, and an additional oath would not be likely to elicit the truth as to the collections made by him which the first failed to bring to light.
Reversed and remanded for new trial.