Wright v. Robinson

94 Ala. 479

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

STONE, C. J.

— N. D. Wright died intestate in October, 1883, leaving a widow and four children surviving him, all of whom are still living. He had been guardian of one Caroline Wright, and had lent eight hundred dollars to J. C. Wright, taking as security for its repayment a mortgage on real estate. The note evidencing the debt, and the mortgage to secure its repayment, express in each that they are made to “N. D. Wright, guardian of Caroline Wright.” This note and the mortgage were found among N. I). Wright’s papers after his death. N. D. Wright in his lifetime, and shortly before his death, had made a final settlement of his guardianship of Caroline Wright, and had accounted for the eight hundred dollars previously loaned to J. D. Wright. He paid her in full. There was never any administration on the estate of N. D. Wright, but Robinson and Eubanks, husbands of two of the daughters, under authority from the Avidow and adult children, proceeded to collect up the assets and pay the debts of the estate.

The present bill was filed in May, 1890, near seven years after the death of N. D. Wright. The widotv and the four children are made complainants, and the object of the bill is to foreclose said mortgage for a balance alleged to be due. The b in its averments sets forth the facts stated above. .It also avers that all the complainants were adults, save one — the youngest daughter — and that she had been relieved of the disabilities of minority- It avers further that all the debts of N. D. Wright, the .intestate, had been paid. There was a ..demurrer to the bill, the main ground being that the suit Avas brought in the names of others than the personal representative of N. 1). Wright’s estate.

Questions almost identical Avith the one raised by the demurrer, have been very often before this court. We haAm uniformly held, that where nothing remains to be doné except the reduction of the assets to possession, and their distribution among the next of kin, administration may be dispensed Avith. — Bethea v. McCall, 5 Ala. 308; Miller v. Eatman, 11 Ala. 614; Vanzant v. Morris, 25 Ala. 285; Marshall v. Crow, 29 Ala. 298; Carter v. Owens, 41 Ala. 219; Fretwell v. McLemore, 52 Ala. 124; Sullivan v. Lawler, 72 Ala. 68, 72; Cooper v. Davidson, 86 Ala. 367. The demurrer Avas rightly overruled.

The averred facts show that, when N. D. Wright paid his ward in full, the 'note and mortgage became his property. Tompkies v. Reynolds, 17 Ala. 109.

Producing the note and mortgage from the proper custody, proof thatN. D. Wright settled with his ward and paid her off, and the testimony of Robinson, make a very strong showing in favor of complainants. Rejecting, as illegal, all testimony given by J. D. Wright, of transactions alleged to have-been had with the deceased, and the defense is left without material evidence in its support. There is no testimony to overturn the presumptions raised by the papers. Complainants have fully made out their case.

Affirmed.