Noland v. Elkins

2 Ky. Op. 144, 1867 Ky. LEXIS 441

• Court: Court of Appeals of Kentucky
• Decided: December 12, 1867
• Status: Published

Opinion

OPINION OE THE 0OURT BY

JUDGE WlXLIAMS :

As it was tbe sworn duty of tbe appraisers and administrator of Zacbariab Elkins, deceased, to report tbe personal estate on tbe appraisement bills, and they did report tbe note on Noland at fonr hundred dollars, this was competent evidence and prima facie established tbe amount of tbe debt, and which should prevail over tbe vague and uncertain recollections of witnesses in bis behalf, be having become administrator de bonis non, and thereby become possessed of tbe evidence of tbe debt against him; bad be acted properly be would have returned an inventory of what came to bis band, and preserved tbe evidence of tbe debts due bis decedent from himself, not having done this, all reasonable presumptions should be taken tbe more strongly against him. It was, however, erroneous to compound tbe interest with biennial rests. Tbe Statute, Section 25, Chapter 37, 1 Stant., 507, only makes tbe administrator liable for interest after two years, unless be negatives tbe presumption that be used tbe assets.

It was erroneous to adjudge to tbe widow tbe entire debt, as she was legally entitled to but a third, yet as tbe distributees were parties, this would have barred them from any future recovery, and, therefore, was no injurious error to appellant, yet as tbe judgment must be reversed, upon both tbe appeal and cross-appeal, for the-first and second errors named, it would be well for tbe court in any subsequent judgment to correct this.

Wherefore the judgment is reversed upon tbe original and cross-appeals, without costs to either party, with directions to tbe court below for further proceedings as herein indicated.