Wright's Adm'r v. Wright's Distributees

BBIOKELL, C. J. We do not find any error in this record, prejudicial to the appellant. It is not within the line of the ordinary authority and duty of an executor, or administrator, to apply the assets in his hands to the maintenance of the widow and children, or others standing in a relation of dependence to the testator, or intestate. It may be admitted, that the will of the testator charged his estate with the maintenance and education of his grand-son, Henry J. Wright, and that the executor, or an administrator de bonis non with the will annexed, would have been authorized to make a reasonable appropriation of the assets for that purpose. The charge was subordinate to the payment of debts, and the expenses of administration. It is not shown that there were assets remaining after the payment of debts and the expenses of administration, which could have been properly applied to the maintenance of the grand-son; nor that the allowance of the claim for his board would not have imposed it on the assets of the estate of Thomas J. Wright, which were not subject to its payment. Independent of this consideration, there was no evidence offered of the correctness of the voucher, nor of the fact of its payment. Vouchers presented by an administrator, are not self-proving. If objection is made to them, the onus of 92 proof rests on the administrator or executor; and if evidence sufficient to create the presumption of the validity of the claim and its payment is not produced, a credit for it can not be allowed. The mere production of an instrument, purporting to be a receipt, without proof of the signature of the party by whom it purports to be signed, and who may be entitled to receive payment, is not proof of payment. Gauntt v. Tucker, 18 Ala. 27. Let the judgment be affirmed.