McCollum v. McCollum

• Decision Date: 20 December 1928
• Docket Number: 2 Div. 927
• Citation: 218 Ala. 500,119 So. 232
• Parties: McCOLLUM v. McCOLLUM et al.
• Court: Alabama Supreme Court

119 So. 232

218 Ala. 500

McCOLLUM v. McCOLLUM et al.

2 Div. 927

Supreme Court of Alabama

December 20, 1928

Appeal from Circuit Court, Hale County; Harry W. Gamble, Judge.

Bill for accounting by Laurine S. McCollum, executrix of the estate of E.K. McCollum, deceased, against Louise L. McCollum and others. From a decree confirming the report of the register, complainant appeals. Reversed and remanded.

Frank Gordon and Clifton C. Johnston, both of Marion, for appellant.

Arthur M. Pitts, of Selma, for appellees.

GARDNER J.

Appellant Laurine S. McCollum, was duly appointed executrix of the estate of E.K. McCollum, who died in 1926. In 1914 said E.K McCollum was appointed executor of the estate of his brother E.P. McCollum, and also served in the capacity of trustee under the terms of the will. At the time of the death of E.K. McCollum there had been no settlement made by him in either capacity, as executor or trustee, and this bill was filed by his executrix for an accounting and adjustment of the equities of all interested parties, to the end that complainant may have a full discharge as executrix of the estate of E.K. McCollum on account of such administration and trust. An order was duly entered removing the administration of the estate of E.K. McCollum, deceased, from the probate to the equity court, and complainant required to file her account and vouchers for a settlement of said estate and the trust set forth in the will. Such was done, and a decretal order entered referring the matter of accounting to the register. The reference was held and report of the register filed, to which complainant interposed exceptions. These exceptions were overruled by the court, and the register's report confirmed, and complainant prosecutes the appeal for a review of the ruling of the court confirming such report.

There appears in the record no note of testimony (Rule 75, Chancery Practice), and counsel for appellant insist a reversal must necessarily result, citing Jones v. Moore, 215 Ala. 579, 112 So. 207; Brassell v. Brassell, 205 Ala. 201, 87 So. 347; Kelley v. Chandler, 200 Ala. 215, 75 So. 973. As appellant is the actor in this proceeding, it would appear such lack of a note of testimony could result in no benefit to her. White v. White, 207 Ala. 533, 93 So. 457.

But that question aside, the rule is without influence in the instant case. The court assumed jurisdiction, and ordered a reference upon the admitted equity of the bill. There was no denial in the answer of any material averments of the bill upon which its equities rested, and no proof was necessary upon which to found the decree of reference. The rule as to requiring a note of testimony was intended for practical purposes, and, no necessity existing for the offer of proof, it follows there was no proof to note, and therefore the rule is without application. It does not apply to exceptions to reports of the register, as Chancery Rule 93 (4 Code of 1923, p. 935), in connection with section 6598, Code of 1923, deals specifically with that question requiring that evidence in support thereof be noted "at the foot of each exception," and this rule has been rigidly enforced. Ex parte Cairns, 209 Ala. 358, 96 So. 246.

Upon a consideration of the exceptions to the register's report, it appears that exception numbered 8 (eleventh assignment of error) presents the most important question here for determination. The rule is well established that all reasonable presumptions are indulged to support the rulings of the register on his conclusion of facts, and that the chancellor's ruling on exceptions to his report, "sustaining his conclusions as to facts dependent on the evidence produced before him, will not be disturbed on appeal, unless such conclusions are clearly wrong and erroneous." Warren v. Lawson, 117 Ala. 339, headnote 2, 23 So. 65.

The above exception relates to interest charge on the Powers mortgage, which it is insisted was duplicated. This duplication, it is further urged, arises from the assumption or conclusion there were two such mortgages when in fact there was only one. The mortgages offered in evidence were so offered by counsel for respondents for the purpose of charging interest thereon against the estate of E.K. McCollum. Counsel first offered mortgage of T.J. Powers, made April 11, 1914, to Eugene K. McCollum as trustee for $7,915.55, and, after introducing another mortgage, not here concerned, counsel offered "mortgage of T.J. Powers to E.K. McCollum as trustee for $6,500 in book 93, page 482, which was marked satisfied March 9, 1918." Confessedly, there is only one Powers mortgage in the record, and interest has been calculated and charged on each of the above-noted amounts. We find on page 63 of the transcript mortgage of T.J. Powers to Eugene McCollum as trustee "in the aggregate sum of $7,915.55, of which sum $6,500 is the principal amount this day loaned to the said T.J. Powers, and $1,415.55 is the interest thereon at eight per cent. per annum." We find this mortgage was recorded in Book 93, p. 482, and was marked "Satisfied" on March 9, 1918. We have noted also that it recites upon the face of the mortgage that the principal sum was $6,500. It appears therefore that all of these matters coincide with the description of the "second mortgage" hereinabove referred to, and, we think, point unerringly to the conclusion there was only one mortgage which in the aggregate was for $7,915.55, the principal of which was $6,500 and recorded in Book 93, p. 482.

Counsel for appellee places much stress upon the certificate of the register, but we do not read this certificate as stating there were two Powers mortgages introduced in evidence. The certificate states: "That the T.J. Powers mortgage for the sum of $7,915.55 testified to in the reference held on the 23rd day of July, 1927, does not appear in this transcript. The complete file was sent to the special judge in this cause to Selma, Alabama, and the above mentioned mortgage is not in the file as transcribed, and cannot be found after diligent effort." But, as noted, the only Powers mortgage set out in the transcript is the one in the aggregate sum of $7,915.55, and appears on page 63 of this record. The mortgage which is not in the record is the $6,500 mortgage referred to as being in Book 93, ...