Pendergrass v. Allen

Hart, J., (after stating the facts). It is not contended by the defendant, Pendergrass, that either he or his co-defendants has paid the note. He relies for a reversal of the decree on the ground that the discharge of the executrix can not be established by oral evidence, and that the action should have been brought by Ida V. Lane, as executrix, instead of in her own name. This may be conceded as an abstract proposition of law, and still the plaintiff was entitled to a decree of foreclosure under the facts of this case. The records show that the will was admitted to probate, and the plaintiff appointed executrix on the 9th day of May, 1906. She was the sole legatee under the will, and testified that no part of the mortgage debt has ever been paid. All the records of the probate court were introduced in evidence, and it does not appear that any claims were ever probated against the estate. While the testimony of the clerk was not competent to prove the discharge of the executrix, it was competent to show by him that there were no further record entries after that of July 31, 1908, and that two years had elapsed from that time to the time at which the clerk was testifying. Hence it may be said that the probate records show that no debts were ever probated against the estate, and that the plaintiff was the sole legatee under the will, and the chancellor is presumed to have considered only competent testimony. Therefore, it is apparent that, if the administration might be still considered open, the executrix has no contingent interest in the estate. Reed v. Ash, 30 Ark. 775. There being no debts probated against the estate during the time in which they might have been legally exhibited and the plaintiff being the sole legatee under the will, it could make no difference to the defendant whether she brought suit as executrix or in her individual capacity. It is well settled that this court will 'not reverse for errors that are not prejudicial to the rights of the party appealing. The decree will be affirmed.