Jackson v. Wood

108 Ala. 209

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

McOLELLAN, J.

On the principle that when two names are signed to a note the prima facie presumption is that the subscribers’ are co-makers and equally bound, the probate court erred in allowing the executrix credit for the sum of two hundred and fifty dollars which, having been paid by Frank Wood on a note for five hundred dollars signed by the testator and himself, she refunded to said Frank Wood, (2 Daniel on negotiable instruments 1336 ; Summerhill v. Tapp, 52 Ala. 277), in the absence of proof that the parties were not comakers.

The credit claimed by the executrix for payment made to M. T. Singleton for the expenses incident to the last illness and burial of the testator was contested by the creditors. The only evidence of the correctness of this item of credit offered in the court below was the ex parte affidavit of said Singleton. The credit should not have been allowed, after contestation, upon such evidence.— Jenks v. Terrell, 73 Ala. 238 ; McDonald v. Carnes, 90 Ala. 147.

The court also erred in .allowing the executrix credit' fpr the several debts, not of a preferred class’, which she; paid in full. These creditors, as the event proved, were only entitled to share pro rata with others in the assets of the insolvent estate, and their payment in full by the executrix was made at her own peril. She is only entitled on account of these payments to be ‘ ‘substituted for the creditors whose claims she has thus discharged, as a claimant against the insolvent estate, and to take the same distributive share to which- those creditors would have been entitled.—Hearin, Admr. v. Savage, Admr. 16 Ala. 286, 294 ; McNeill’s Admr. v. McNeil’sl Creditors, 36 Ala. 109, 116 ; Shelton v. Carpenter, et al. 60 Ala. 201, 213.

Reversed and^remanded.