Winningham v. Holloway

• Decision Date: 11 May 1889
• Citation: 11 S.W. 579,51 Ark. 385
• Parties: WINNINGHAM v. HOLLOWAY
• Court: Arkansas Supreme Court

11 S.W. 579

51 Ark. 385

WINNINGHAM v. HOLLOWAY

Supreme Court of Arkansas

May 11, 1889

APPEAL from Ashley Circuit Court, JNO. M. BRADLEY, Judge.

Reversed and remanded.

M. L Hawkins and G. W. Norman, for appellant.

1. There had been a final settlement of the estate; all debts had been paid; there was nothing more for an administrator to do, and the judgment passed by law to the heirs at law. They had the legal title to it and could assign to whom they pleased. 6 Wallace (U.S.), 458, 461.

2. The affidavit of Winningham was all that could be required in this case. The affidavit required by sec. 106, Mansf. Dig. not necessary under the circumstances. Mansf. Dig., sec. 102; 13 Ark. 276.

3. That the legal title was in the heirs, see 27 Ark. 445, 637; 5 Id., 608; 30 Id., 775.

4. That sec. 106, Mansf. Dig., is not a prerequisite, see 13 Ark 276; 14 Id., 246; 22 Id., 535; 25 Id., 219; 9 Id., 440; 15 Id., 39; 13 Id., 262.

Mark Valentine, for appellee.

1. The heirs had no right to assign to Winningham the judgment in favor of Johnson as administrator. The assignment was made before the administrator's discharge. The heirs could not collect them judgment; they could not sue to recover it. 31 Ark. 723.

2. The claim was not properly authenticated. Mansf. Dig., sec. 106. It should have been sworn to by the Ethridge heirs.

OPINION

BATTLE, J.

In 1865 George W. Ethridge died intestate, leaving an estate consisting partly of money. One Johnson administered and he was ordered by the probate court to loan the money J. L. Holloway borrowed about $ 600.00 of it, and he executed his note therefor. The note not having been paid at maturity, the administrator brought, suit on it against Holloway and recovered judgment, on which an execution was issued, and a small part of it was collected. In April of 1877, Johnson as administrator of Ethridge, filed a settlement in which he claimed a credit for the balance due on the judgment. The credit was allowed and the settlement was confirmed. Sometime after this, on the 10th of August, 1878, the distributees of Ethridge transferred the judgment to James H. Winningham; and still later on (when, it does not appear), the administrator, privately and without the direction of a court, assigned it to A. P. Holloway. In the meantime J. L. Holloway, the judgment debtor, died, and John D. Holloway became the administrator of his estate. When he died it is not shown, but it is conceded that he died before the transfer was made to Winningham. In April, 1881, Johnson as administrator of Ethridge, filed his final account current in the probate court and represented therein that he had paid the balance which remained in his hands at the filing of his last settlement, to the distributees of his intestate, and asked a credit and filed a receipt of the distributees therefor. At the next term thereafter the probate court confirmed his settlement and discharged him from further liability as such administrator. Each of the assignees of the. judgment against J. L. Holloway, claiming to be the rightful owner of the same, presented it for allowance against the estate of J. L. Holloway. It was not authenticated, as presented by either one of the claimants, by the oaths of the administrator or distributees of Ethridge. It was allowed in the probate court in favor of Winningham, and the administrator of Holloway and A. P. Holloway appealed to the circuit court. In the circuit court the administrator of Holloway moved to dismiss the claim as presented by Winningham (1), because he was not the. owner, and (2) because it was not properly authenticated by his assignors. The court heard the evidence introduced to support the claim of each claimant and the motion to dismiss, sustained the motion and dismissed the claim as presented by each of the parties, and Winningham appealed.

The questions presented by counsel for our consideration and decision are: (1) Is the executor of James H. Winningham the owner of the claim in controversy; and (2) if so, was it legally authenticated?

The statute of this State prohibits the sale of personal estate of deceased persons "unless the same be ordered by last will and testament, or by direction of the court; and when so ordered or directed," provides that "the ex...