Morgan's Adm'r v. Morgan's Distributees

R. W. WALKER, J. When the correctness of the decision of the probate judge depends upon the proof, and it does not affirmatively appear that all the evidence upon which he acted is set out in the record, this court will presume that the decision was correct. — Bradley v. Andress, 80 Ala. 80 ; Lovett v. Chisholm, ib. 88; Fleming v. Ussery, ib. 240; Henderson v. Renfro, 31 Ala. 105; Stein v. Feltheimer, ib. 57. The bill of exceptions does not purport to set out all the evidence which was before the court in reference to the charges for the hire and [308] value of the negro Jesse, and for the sum of $506 on account of the land sold to Jones. "We cannot say, therefore, that the court erred in its decisions upon these items. Southern Mutual Ins. Co. v. Holcombe, at this term. 2. We do not perceive that the court erred in refusing to allow the administrator credit for the note for $674, payable to S. M. Morgan. There was no proof that the intestate made the note, or authorized Colley to sign it. No reason is shown why the intestate did not sign the note himself. It was dated 7th July, 1854; and it was shown that he was then competent to transact business, and did in fact on that day sign the deed to Jones. The evidence of the mode of payment was vague and indefinite. It is stated that the administrator settled the note “ by an account against the estate of said 8. M. Morgan;” but it is not shown whether this account was in favor of the administrator, or ’ of his intestate. The only evidence, apart from the note itself, tending to show that the intestate was in fact indebted to 8. M. Morgan, was the testimony of Higgins, and he was contradicted, in a material part of his statement, by the witnesses Jones and Marvin. 3. On the final settlement of an estate, an infant distributee may be represented by his general guardian; but, if there be no general guardian, or if, after being notified, he fails to attend, it is the duty of the court to appoint a guardian ad litem. — Xingv. Collins, 21 Ala. 363. In that case, there is no doubt that a decree may be properly rendered in favor of the infant by his guardian ad litem ; and although it may be true, that the guardian ad litem, like thaprochein ami of an infant in a suit at law, has' no right to receive the money on the decree; yet it does not follow that execution could not be properly issued on it. In such a case, the money, when collected, could, and ought to be paid into court, to be received by the general guardian of the infant, whenever he is appointed, and applies for it. This is not like the case of Fagan v. Fagan, 15 Ala. 338. There the decree was in favor of the infant, without the interposition of any guardian, either general or ad litem; and it was held, that no execution could property issue on it. Here the record shows a regular [309] appointment of a guardian ad litem, and the decree is in favor of the infant by his guardian. The order for an execution upon such a decree is not improper. — See Smith v. Redus, 9 Ala. 99. The decree is affirmed.