Scarbrough v. Blackman

• Decision Date: 29 November 1895
• Citation: 108 Ala. 656,18 So. 735
• Court: Alabama Supreme Court
• Parties: SCARBROUGH ET AL. v. BLACKMAN.

18 So. 735

108 Ala. 656

SCARBROUGH ET AL. v. BLACKMAN.

Supreme Court of Alabama

November 29, 1895

Appeal from circuit court, Cleburne county; Leroy F. Box, Judge.

Action by Sarah A. Blackman against W. A. Scarbrough and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

This was an action of assumpsit brought by the appellee, Sarah A Blackman, against the appellants, W. A. Scarbrough and James R. Moore, as administrators of the estate of N. J. Ross. The complaint contained two counts. The first was for money due on an account, and the second for money had and received. On the trial of the case, as is shown by the bill of exceptions the plaintiff introduced in evidence the final decree of the probate court of Cleburne county, rendered upon the final settlement of the estate of Frederick Ross, deceased, by John Ross, as executor. Frederick Ross was the father of the plaintiff and of the defendants' intestate. This final decree, which was offered in evidence, ascertained and decreed the distributive shares of the several distributees of the estates of Frederick Ross, deceased. Prior to the settlement of the estate of Frederick Ross, deceased, and the rendition of the decree thereon, Jessie S. Warlick, one of the distributees, had assigned her interest in said estate to the plaintiff, and this interest was ordered paid to the plaintiff in the decree. Defendants objected to the introduction of this decree in evidence, on the ground that it was immaterial, illegal, and irrelevant, and duly excepted to the court's overruling their objection. The plaintiff also introduced in evidence a receipt given by her and the attorney for N. J. Ross, deceased, to John Ross, the executor, in full payment of the amounts which had been decreed to them in the final decree rendered on the settlement of Frederick Ross' estate. The testimony for the plaintiff tended to show that in order to effect the final settlement of the estate of Frederick Ross, deceased she had given N. J. Ross, the defendants' intestate, the benefit of the two shares to which she had been decreed entitled, and N. J. Ross agreed to pay her the amounts thereof, with interest, but that he had never paid either amount. The testimony for the defendants tended to show that their intestate had furnished the plaintiff the money with which to purchase Jessie S. Warlick's interest in the estate of Frederick Ross, deceased; and that the plaintiff was indebted to their intestate in an amount greater than the amount due her as her distributive share in Frederick Ross' estate. Upon the examination of the plaintiff as a witness in her own behalf, she was asked whether she had received from the deceased, N. J. Ross, in his lifetime, any letters written by him to her with reference to the purchase of the interest of Jessie S. Warlick, and the use by him of her interest in paying the purchase money for the lands belonging to the estate of Frederick Ross, deceased. The witness answered that she had received such letters, but had burned them after keeping them for a long time, thinking that she would never have any use or need for them. This witness was then asked to state the contents of the letters referred to. The defendants objected to this question, because it called for statements by or transactions with the decedent in his lifetime, to which the plaintiff, being a party to the suit, was incompetent to testify. The court overruled the defendants' objection, permitted the witness to answer and the defendants duly excepted. The witness then stated the contents of such letters, which was that N. J. Ross would purchase the Frederick Ross lands if he could get the use of plaintiff's interest and the Warlick interest in paying the purchase money of the lands, and requested the use of these interests for that purpose, which request the plaintiff granted. The defendants objected to this testimony, and moved to exclude it upon the grounds as stated above. The court overruled the objection, and the defendants excepted. The plaintiff also testified that she had borrowed from the defendants' intestate the money with which to purchase the interest of Jessie S. Warlick in the estate of Frederick Ross, deceased, but that she had paid this money back to the defendants' intestate in his lifetime. The defendants introduced in evidence extracts from certain letters received by their intestate from the plaintiff, in which she admitted her indebtedness to him in certain amounts. The other facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) "If the jury find from the evidence that plaintiff was a distributee of F. Ross, deceased, and as such, was entitled to and obtained a decree for $582.14 for her share, and also the same amount as assignee or transferee of Jessie Warlick's interest, and if the jury further find from the evidence that N. J. Ross got the benefit of these two amounts in paying the purchase money of the lands, assuming and agreeing to pay to plaintiff the said sums, then the jury will find for the plaintiff for the amount sued for." (2) "The burden is not on the plaintiff to prove that, at the time of the probate settlement, she did not owe N. J. Ross anything." (3) "The jury will only consider the testimony of the witnesses in reaching their verdict, and, unless...