The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-05-23
No. 9l04.
A. B. HARRISON vs.. Hugh l.. White, Exc
ecutor, &C.


This case comes up by appeal from the
Judgment Of the Court OF Probates Of Tai
lahatchie county, upon exceptions taken
by the appellant as distrIbutee Of the
estate OF Peter 4. Baily, deceased, to the
final account Of the appellee as executor
of that estate.
The errors assigned relate to the action
of the court in overriding certain eXcep-
tions, which we will proceed to consider.
The first exception was taken to vouch-
or No. |, in executors account, which was
statement IN writing, signed by the
sheriff Of the county, recIting a judgment
in favor OF one Zolhcotfer against the ap-
pellee's testator, and the interest and
costs thereon, and stating that the same
had been paid by levy and sale OF a GER
tain slave. In support OF this voucher,
the executor introduced the deputy sher-
if who signed 1t, who testified that he
levied an execution as stated IN the pa
per, and gave TO the executor the same as
a receipt. The same exception was alsc
taken to voucher No. A, which was q
sheriff 5 receipt for costs paid by the exc
cutor on a judgment against the testator.
and the evidence IN support OF both O.
these vouchers was substantially the same.
1t is now objected that IN order TO JUS
THY the executor IN paying the latter sum
and to entItle him to allowance Tor the
former, he should have produced short
copy OF the judgments certified by the
clerk OF the court IN winch they were rem
dered, in pursuance OF the -tdlute.-Rey.
Code I43. Art - But 1t Is clear that
this statute has no Application to such
cases. Ii has reference to the payment o.
judgments to the creditors OF an estate,
| by executors or administrators, not IN VIZ
| tue of executions and other legal process,
| but by private transaction between them
I The executor or administrator cannot re-
1 quire OF a sheriff holding an execution
/ against the estate OF his testator 81 intes
/ tate. such voucher, because the process
/ is itself compulsory, and would justify the
sheriff in taking in execution property o.
| the estate subject to il and 1t would
| bence Justify the executor or admlnlstra
tor in making payment TO him.
IL is true, that il would be more regu
/ lar for the executor in such a case 10 pro
| duce a copy OF the execution under winch
| he made payment to the sheuft; but a
/ the receipt Is executed 10y public othcer
I it must be taken priuta tdcts rs correct
and as evidence OF the existence OF the
Judgment to which 1t referred. For II l,
/ sufficient TO give to parties Interested no
I tice of the claim, and to enable them &c
examine whether there was the Judgment
stated in the officers receipt, and # moi
/ to defeat the allowance claimed by the
executor But to require the production
I of a copy of the judgment or execution
would be to burthen the estate with tho
+ costs of the same, which would be for the
most part unnecessary. These exceptions
we're therefore properly disallowed.
The next exception applies to vouchers
Nos. and 81, which We're open accounts
against the testator, with receipts endors
ed a. having been paid by the executor
but without probate. The only evidenc,
offered in support of these vouchers, wa,
the testimony of the creditor showing thai
the signature to the receipts was IN the
handwriting Of his clerk, but that ht
knew nothing OF the accounts except thai
the testator dealt with him during the
year therein stated. This proof was moi
sufficient, either to show the correctness
of the accounts or that they had pot beer
paid by the testatOr in his lifetime; sno
these exceptions should have been sus
tanned.
The next exception applies TO an oper
account, which as stated and probated ap
pears to be for a balance Of Sl2.5s, bu
the original amount OF it was $50. 70, there
being credits entered on 1t reducing 1t t'
the amount first mentioned. The ac
count was allowed for the full amount o
1876, except a very small sum, anus al
lowing the executor for a credit OF 50 en-
tered on the account as having been palc
by him, without any evidence that ina
sum was paid him. This was error. Inc
sum was credited on the account as pro
bated, and there was no evidence una
the sum of $500 credited was PAD 10y
him
The next exception is taken to TN
vouchers Nos. 10 and 80, which were WI
nesses certificates for attendandance IN
suit in which the testator was party
There was no probate attached TO ines
certificates, and nothing to show tha' the
had not been paid by the testator ah'
the exception to them should have oeei
sustained.
The last exception insisted on was IA
ken to vouchers 80, 40 and II, which pun
port to be for costs of an administration Q
the estate of the testatOr taken IN IN
State of Tennessee, for the costs OF SUI
there which he had instituted ana 10
an attorneys fes in the suit.