Opinion
(September Term, 1889.)
Evidence — Burden of Proof — Settlement — Guardian — Administration — Judge Charge.
1. The ex parte settlement made by guardians, executors and administrators with the courts having jurisdiction of such matters, are, when accepted by the court, prima facie correct, and while not conclusive upon creditors or next of kin, and strict proof and specific assignment of errors are not required as in actions to surcharge a stated account, nevertheless the burden is on the party attacking them to establish, by a preponderance of testimony, their incorrectness.
2. It is not erroneous for the judge to direct the attention of the jury to the contention of a party to the cause made in the argument of his counsel, founded upon a calculation of an account alleged to be due, when that fact grew out of the evidence introduced and was material to the controversy, especially when no objection was made to the argument.
APPEAL from Merrimon, J., at August Term, 1889, of IREDELL.
(571) D. M. Furches and W. D. Turner for plaintiffs.
T. B. Bailey, W. M. Robbins, and M. L. McCorkle for defendants.
The question involved in this action is the correctness of the settlement made by J. M. Turner, guardian of M. D. Turner, with the removed guardian, Benjamin Turner. The former received from the latter the sum of $1,656.30 and executed to him a receipt for the same "in full of claims against him as former guardian of M. D. Turner as per settlement with the court." This settlement was made under the order of the county court, which had appointed two of its justices to make the same, and whose report was duly confirmed.
The court charged the jury "that the fact that the . . . settlement was accepted and confirmed by the Court of Pleas and Quarter Sessions, and ordered to be recorded, was a very strong presumption that it was correct." To this instruction the plaintiffs excepted —
1. Although such ex parte settlements are not binding upon creditors, next of kin, etc., they are recognized by the courts as prima facie correct, and the burden is on the attacking party to show them to be otherwise. Strict proof and the assignment of specific errors in such cases are not required, as in actions to surcharge and falsify "stated accounts," but there is a legal presumption in their favor until they are successfully assailed by a preponderance of testimony. This view is fully sustained by the cases of Becton v. Becton, 56 N.C. 423; Temple v. Williams, 91 N.C. 83; Grant v. Hughes, 94 N.C. 236.
These authorities say that there is a "prima facie presumption" in favor of the correctness of such settlements. By this we understand that the law presumes that they are correct until the contrary is shown. Such is the meaning of prima facie evidence, which "is evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced." (572) Emmons v. Bank, 97 Mass. 243.
"It is that which suffices for the proof of a particular fact until contradicted or overcome by other evidence." Thus, if ex parte accounts are filed under sections 1399, 1402, 1617 of the Code, they are to be taken, as a matter of law, to be correct until shown to be erroneous.
Now, if we apply this rule to the charge of his Honor, it is apparent that if he erred at all it was in favor of the appellant, for had the jury disbelieved the impeaching testimony, or if none whatever had been introduced, they would, under the instruction given, have been at liberty to have found against the settlement; whereas, as a matter of law, they could not have so found under such circumstances. In other words, the court charged, in effect, that there was a presumption of fact, when it should have charged that as a matter of law the settlement was prima facie correct, and should stand unless shown to be otherwise.
It will be observed that his Honor very properly held that only a preponderance of testimony was sufficient, which is the same degree of proof that is required in ordinary suits for account and settlement against executors, administrators, guardians, etc. We are therefore of the opinion that the exception is untenable.
2. Neither do we see any error in his Honor's telling the jury that they might consider the result of the calculation mentioned by him. This argument was made to the jury without objection, and did not at that time seem to be obnoxious to the plaintiffs.
It appears that in an action brought by the ward against the bond of J. M. Turner it was adjudged that the ward should recover the sum of $3,500. The plaintiffs contended that the difference between this amount and the $1,656.30 received by J. M. Turner covered the errors made in the settlement, and for which the said J. M. Turner was held liable for not collecting. (573)
In support of the alleged errors the plaintiffs relied almost entirely upon the testimony of the former guardian, who admitted his unfaithfulness to his trust. The defendants had a right to argue his credibility to the jury, and to call their attention to any circumstance which sustained even slightly the correctness of the settlement. The fact that the $1,656.30, and compound interest thereon, amounted to about the sum of $3,500 when the judgment was taken for the latter amount was not, from what appears in this record, irrelevant to the inquiry.
3. As to the alleged error in charging the ward with board and clothing, it is sufficient to say that no such question seems to have been raised before his Honor, and no error in this respect is assigned. Dorsey v. Moore, 100 N.C. 41, and McKinnon v. Morrison, ante, 354. This may also be said of the first point which we have considered, but as there was an implied admission on the argument that the question was raised below, we have thought proper to pass upon it.
Affirmed.
(574)