Wright v. Bessman

Jackson, Judge.

The administrator applied for letters of dismission. Bess-man, a creditor of intestate, objected, on the ground that the administrator had misapplied the assets of the estate in this, that he had paid off a note barred by the statute of limitations, and had thus made himself responsible to creditors and could pot be discharged until the claim of objector was paid *188 to the extent of the misapplied fund. The jury, under the charge of the court, found against the discharge; the administrator moved for a new trial on many grounds, but which we think may be reduced to three:

1st. That the court erred in ruling that the return of the administrator is not prima fade evidence of its correctness after it is approved and entered of record by the ordinary.

2d. That the court erred in excluding the testimony of High, the payee of the note, that the credit thereon was made by him by the direction of the intestate. /

3d. Which is the main question in the case, that the court erred in ruling that the credit on the note which kept it alive, if alive at all, as it was not signed at all, must be in the handwriting of the intestate. It was admitted not to be in his hand writing, and the case turns on whether it could be proved that he authorized the payee to put- the credit on for him so as to keep the note alive.

1. As to the first ground, we think the returns allowed by the ordinary are prima fade evidence for the administrator, and that the same must be rebutted by proof, the onus being upon the objector: Code, section 2527.

2. As to the second point, we think that the court was right in rejecting the testimony of High. The other.party to the transaction on which- the case turned was dead, and the reason and spirit of the exception in section 3854 of the Code, applies. Besides, the very object of requiring the credit tobe put on by the maker of the note to prevent the bar of the statute, would be defeated, if the payee, after the death of the maker especially, were permitted to swear that he, as the agent of the.dead maker, put the credit upon the note: Code, section 3854; Shumate vs. Williamson, 34 Georgia Reports, 245.

3. But if High had been competent as a witness, he could not have been the agent under the ruling in Shumate vs. Williamson. So that if it had been proved by him that he put the credit there by authority of the intestate, it would be as if it had not been put there at all. While, therefore, the court *189 may have committed errors, on the main questions he ruled right; and as the verdict of the jury under the admitted facts must have been as it is in any event, we affirm the judgment of the court below in overruling the motion for a new trial. Judgment affirmed.