Lindsey v. Lindsey

• Decision Date: 11 October 1934
• Docket Number: 5 Div. 161.
• Citation: 158 So. 522,229 Ala. 578
• Court: Alabama Supreme Court
• Parties: LINDSEY v. LINDSEY et al.

158 So. 522

229 Ala. 578

LINDSEY v. LINDSEY et al.

5 Div. 161.

Supreme Court of Alabama

October 11, 1934

Rehearing Denied Jan. 24, 1935.

Appeal from Probate Court, Chambers County; W. C. Batson, Judge.

Petition of J. J. Lindsey and others to require final settlement by Ed. B. Lindsey of his accounts as coexecutor of the will of J. B. F. Lindsey, deceased. From the decree on settlement the former executor appeals.

Affirmed.

Jas. W Strother, of Dadeville, for appellant.

Jacob A. Walker and O. P. Lee, both of Opelika, for appellees.

BOULDIN Justice.

Appellant having been removed as one of the coexecutors of the estate of his father, J. B. F. Lindsey, was brought to a final settlement in the probate court.

The present appeal is from the decree on such settlement.

The order of removal was affirmed on appeal. Lindsey v Lindsey et al., 226 Ala. 489, 147 So. 425.

A reference to that decision will disclose the issue there tried involved the validity of a check, purporting to have been given by the decedent to appellant for $8,000, and on which appellant had drawn from the bank said sum during his father's lifetime. It was there charged this check was a forgery, raised from $8 to $8,000, or was obtained by undue influence. The same issue and the same line of evidence were presented on the final settlement, wherein the removed executor was charged with the amount thereof.

On the final settlement a motion was made that Honorable W. C. Batson, the judge of probate, who had heard the case on application to remove the executor, recuse himself because he could not consider the case with an open mind free from bias, had a fixed opinion, and averring on information and belief that since the former proceedings the judge had been in consultation with opposing parties and their attorneys relative to the cause, and in which the case was discussed between them.

It is very properly admitted that the mere fact of hearing the evidence and rendering a decision adverse to appellant in the former proceeding would not disqualify the judge to try this case involving the same issue of fact. McConnell v. Goodwin, Judge, 189 Ala. 390, 66 So. 675, Ann. Cas. 1917A, 839; 7 Cyc. 588.

The evidence wholly fails to sustain any charge of consultation between Judge Batson and opposing parties or counsel. The accidental presence of Judge Batson, and one of the attorneys, at the home of John Lindsey, as callers, when John had received serious injury in an automobile accident, when appellant, John's brother, was also present, furnishes no color to a charge of bias. Any consultation is expressly disproven.

Moreover, the recognized remedy in such cases is by mandamus to require the judge to certify his incompetency, so that a competent judge may be appointed to hear the cause. Woodmen of the World v. Alford, 206 Ala. 19, and cases cited, page 22, 89 So. 528.

We entertain no doubt of the jurisdiction of the probate court to adjudicate the question of liability here involved on a final settlement of the executorship of the removed executor under Code, § 5925.

If appellant obtained this money on a forged check, or one obtained from his father by undue influence, he became indebted to his father as for money had and received. On his qualification as executor of his father's estate, being both payor and payee, the law raises a presumption of payment; or otherwise stated, the debt became extinguished as matter of law, and the amount thereof became assets of the estate in the hands of the executor to be accounted for on final settlement of his trust. Miller v. Irby's Adm'r, 63 Ala. 477, 482; Cook v. Cook et al., Ex'rs, 69 Ala. 294; Wright v. Lang, 66 Ala. 389; Langley v. Langley et al., 121 Ala. 70, 25 So. 707; Childress v. Childress, 3 Ala. 752; Lindsey v. Lindsey et al., supra.

The mere fact that there is dispute as to the existence of an indebtedness, or the amount thereof, does not oust the jurisdiction of the court. One purpose of such settlement is to ascertain the assets for which the executor has become liable to account.

Dr. Schulhofer, qualified as a professional expert on handwriting and questioned documents, was properly allowed to give his opinion that the original check was drawn for $8, and that the word "Thousand," written between the words "Eight" and "no/100," was inserted at a different time, as also "000" following the figure "8" in the margin; and to proceed to give details, stated by him to be further disclosed by microscope and photograph, such as cramped mechanical condition of words inserted, different shadings of pencils used, touching up of figures after first written, etc. All this is within the scope of such examination, and to be weighed by the jury in the light of all the circumstances, including their own examination of the document.

That the witness was employed by the opposing side, for whom he was testifying, and paid a large per diem as a professional witness, went to the weight of his testimony, not to its admissibility.

In the examination of J. J. Lindsey, one of the executors and distributees of the estate, he was permitted to testify, over objections to his competency as a witness, to a statement made by his father, the decedent, in the presence of appellant, Ed. B. Lindsey, touching money in the bank.

Witness testified that in the early part of 1930, more than a year after this check had been cashed at the bank, his father "said that he had about $10,000.00 in the bank to be divided among his children, and he wanted me to see it was divided equally." Witness further stated: "Ed. was present. * * * Ed. never opened his mouth." Without dispute there was some $10,000 in the bank prior to the cashing of this check, and thereafter it was reduced to $2,000 and below.

This line of testimony from several witnesses was introduced on the former...