Redhead v. Redhead

• Decision Date: 28 June 1915
• Docket Number: 16914
• Citation: 68 So. 923,109 Miss. 648
• Court: Mississippi Supreme Court
• Parties: REDHEAD v. REDHEAD

68 So. 923

109 Miss. 648

REDHEAD v. REDHEAD

No. 16914

Supreme Court of Mississippi

June 28, 1915

APPEAL from the chancery court of Wilkinson county. HON. J. S HICKS, Chancellor.

Mrs. E S. Redhead as widow and devisee, filed exceptions to the final account of Jos. Redhead, as administrator with the will annexed of James A. Redhead, deceased. Decree approving and allowing the final account as recast and exceptant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Ackland H. Jones, for appellant.

The supreme court will not disturb the findings of the chancellor, unless they are manifestly wrong. This applies to his findings on conflicting evidence, and is a proper and reasonable and just rule. It cannot apply, however, where there is no conflict and his decree is at utter variance with his findings.

The record here does not show any of the oral testimony; it does show the findings of the chancellor on the facts. Beginning at the top of page 23 of the record, the chancellor sets out in detail his findings. As shown by the bill of exceptions the sole oral testimony was that of Jos. Redhead, the appellee, and all the evidence introduced was this oral testimony, with the will of J. A. Redhead, and the record of his guardianship.

While the evidence on which the court acts in sustaining or overruling exceptions to an administrator's account should be incorporated into the record, still the supreme court will reject such items as appear on their face to be manifestly illegal and which could not be sustained by any proof whatever. Smith v. Hurd, 8 Smedes & Marshall 682.

W. F French, for appellee.

The court below took up the objections of the appellant item by item and where the objections were well taken as to the forms of the various plantation and annual accounts and affidavits thereto, had same corrected and reformed; and where the vouchers to the accounts were not sufficiently itemized or explicit had other and proper vouchers filed in place thereof. The chancellor was assisted in his findings by having all petitions, accounts and orders of court before him from the beginning of the administration of the estate in 1902, under Jenkins and White, former executors of the testator, until the hearing in the court below; and was also assisted by the testimony, on each item, of the appellee. All of which is not shown by the record in this court.

Appellant's third assignment of error is as follows:

"In disallowing the exceptions, and overruling the same, of appellants as to the allowances made and paid by the said administrator, appellee, to Ella and Julia Redhead, minor children of the testator."

In the testator's will, as shown on page 19 of record, is the following clauses or sentences: "It is my desire and wish that my friends, W. J. Jenkins and F. E. White, be appointed as administrators of my estate until my children shall become of age." "The court will allow an annual allowance for the support of my wards, until they become of age."

This last sentence has been correctly construed by two chancellors, that the testator intended to have the said minor children supported by his estate, as such was clearly the intention of the testator, as it follows the first sentence and is a suggestion to his "administrator" to see that the children secured such allowances. The allowances made the said minor children were made under orders of the court and properly allowed in appellee's annual accounts, and the net balances in said account were annually distributed under orders of court to the respective heirs of the testator among whom was appellant, and appellant raised no objections to the allowances for all these years, although she called upon this court in the case of Redhead v. Redhead, 83 Miss. 141, to invalidate the said will. It was also before the court below that appellant had for some years the care and custody of the persons of those minors, and accepted receipted to a former guardian of said minors for said allowances, but this does not appear from the record before this court.

Truly & Truly, for appellee.

The first point, and, we submit, the controlling one in this particular case, is that the bill of exceptions taken by appellant in the court below fails to incorporate certain oral testimony which was offered in the trial below. We refer the court to page 28 of the record wherein the bill of exceptions is set out. It will there be seen, along with the exhibits and decrees, this language: "Insert testimony of Joseph Redhead."

The record in this case on page 18 shows that the case was tried upon objection, answer of administrator and "testimony of Joseph Redhead." Nowhere in the record is there any showing of the chancellor's notes of evidence, or any record whatever of what this testimony was. There is and can be no dispute as to the fact that this testimony was actually offered in court. As bearing us out in this statement we refer the court to page 23 of the record which contains in part the interlocutory decree rendered by the court. In that decree we quote, the following significant language: "8. That it appears from the accounts and testimony, etc." This shows that testimony was actually given.

In the final decree on page 26 of the record we find this language: "And the court having item by item considered said objections, and being advised in the premises, did order certain corrections to accounts and vouchers, and certain changes to be made in said final account, all of which corrections were duly and legally made to the satisfaction of the court."

The use of the language "item by item considered said objections, and being advised in the premises," also shows that the court had something more before it besides the mere papers which were filed.

An examination of the record will show throughout the entire proceedings that the court did take oral testimony, and the record will nowhere disclose what the nature of this testimony was. That being true, how is this court to know what that testimony might have been and what effect it...