Frazier's Executors v. Praytor

36 Ala. 691

• Court: Supreme Court of Alabama
• Decided: June 15, 1860
• Status: Published

Opinion

R. W. WALKER, J.

The failure of the judge to sign the minutes, did not invalidate the decree, nor render it inadmissible in evidence. — Bartlett & Waring v. Lang’s Adm’rs, 2 Ala. 161.

The charge excepted to was not an instruction that the evidence of Kelly, if believed by the jury, amounted to proof of a presentation of the claim within eighteen months. It left the weight of the evidence, in determining the question of presentation, to the jury; but instructed them, that there was no rule of law which prohibited them from finding, upon the evidence referred to, that the claim had been duly presented to the executors within eighteen months from the grant of letters testamentary. The evidence of Kelly showed, that the executors were informed of the nature and amount of the demand; that they frequently admitted, within the eighteen months, that “ the plaintiff was claiming of said estate said decree, but said they expected to be able to prove it had been paid ;” and upon a partial settlement made by them within the eighteen months, they reserved money to pay this decree, provided they should be compelled to pay it. We cannot say that, upon such evidence, a jury would not be justified in finding a due presentation of the claim to the executors within eighteen months from the grant of letters testamentary. — See Pollard v. Scears, 28 Ala. 487; Harrison v. Jones, 33 ib. 258; Pharis v. Leachman, 20 ib. 662; Hallett v. Br. Bank, 12 ib. 192. Consequently, there was no error in the charge.

[3.] The charge asked by the defendant, -was rightly refused. The sufficiency of the evidence to establish the presentation, was a matter which the court properly left to the jury; and the charge, if given, would have been an invasion of their province.

Judgment affirmed.