Sewell v. Sewell

McCLELLAN, J.

(1-4) Lee Sewell, appellee’s intestate, met a tragic death. On' his person, at the time of his death, was about $165 in money. His- father (appellant) took it into his possession. Later, and before a personal representative was appointed, the father disposed of a part of this money in a manner he sought to disclose through testimony serviceable for the purpose. He proposed to show that $115 of this money really belonged to Joe Sewell, who had, that day, commissioned intestate to carry and deliver it to Mr. Puckett at Hartselle, to which place intestate was en route when he was killed; that $5 of the amount in the possession of intestate was money really belonging to appellant, also delivered to intestate for a particular purpose, and that $7.50 of the fund taken from intestate’s person was used by the defendant to pay physicians who were summoned to attend intestate and who were on the way when advised that intestate had died. The court refused to permit the defendant to make the proof indicated, though the court did permit the defendant, quite properly, to show that approximately $46 of the money was used by the defendant in purchasing a coffin and in paying the funeral expenses for the burial of plaintiff’s intestate. “Possession of property alone and without explanation is evidence of ownership; but it is the lowest species of evidence. It is merely presumptive, and liable to be overcome by any evidence showing the character of the possession, and that it is not necessarily as owner.”- — Vines v. Vandegrift, 192 Ala. 351, 353 , 68 South. 280 ; 16 Cyc. p. 1074. Personal property found in one’s possession or under his dominion, and control at the .time of his *244 death is presumed to belong to him and to constitute assets of his estate; but this presumption is of course rebuttable by evidence appropriate and competent to show that such property did not belong to the decedent and was not an asset of his estate. — ■ 18 Cyc. p. 193. The court was in error in not permitting defendant to show, by legal evidence, that the $115 and the $5 was not the property of Lee Sewell'.

(5) The expenses of the last sickness of a decedent are made preferred claims against his estate by Code, § 2597; but no preference among debts of the same class will be given in the course of administration. — Code, § 2598. If the charge made by and paid to the physicians was shown to be reasonable, and there appeared to be, at the time they were summoned, a reasonable necessity for the presence of physicians in reasonable number, and the other preferred demands against the estate of the intestate would not be prejudiced, in respect of preference, by allowing and crediting the defendant with the sums so paid by him to the physicians, then this defendant was entitled to have that sum deducted from any liability on account of the reception by him of the money he took from the person of the intestate.

For the errors committed in refusing to permit the defendant to make the proof indicated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Sayre and Gardner, JJ., concur.