944 SMITH V. •MULLEN: [169 ••• SMITH. V; MULLEN. . . . Opinion delivered NOvember 30, 1925.. EXECUTORS AND ADMINISTRATORS—CLAIM OF ADMINISTRATOR AGAINST ESTATE.—An administrator who is personally liable .as surety on notes of deceased is entitled to. pay off such note§ and:present his 'aUthenticated claim therefor against the estate. • - Appeal from Lawrence Circuit Court, Eastern Dis- trict; , Pene H. 'Coleman . ,.Judge ; affirmed. E..H. Tharp, for appellant.- . Smith . c -Blackford, for appellee.. . WOOD, J. The appellee, John Mullen, as administrator of 'the estate of F. M. Smith, deceased, ,presented an acCoUnt in favor of hiriaself individually , against the eState of Smith in the sum of $2,206.28. . The accOnnt was dulY verified, and was by Mullen:alio-we'd as adnainistra-tor . and .. classed as a fourth.class. claim. : The claim Was presented to the probate cOurt bY the appellee, Mullen, for alloWance, and was contested by thewidow and heirs of Smith. The probate court alloWed 'the 'clarni in .the sum 'of $898.02, and rejected the claim• for the balanee. Mullen appealed to the 'cirenit court. The cause was saibmitted to a jury in . the circuit court, and at the conclusion of the teStimOny the, Court directed the jury . to return the follOwing Verdict: . "We, the jUrY ., : -find' that • the intereS-t bf John Mullen: in'Alie policy of insurance introduced is the face . of the'Polick:" The verdict waS retnined as directed; and the court there upOn entered a Judgnient in favor of Mullen in: the Sum of $2,000 and such accumulations as amounted on the polic r. -FrOm that judgnient is thth appeal. . .• Mullen testified that he insured' F..M. Smith's life in the sum oT $2 , 000, oir which he'ke . pt the preiniums:paid until the death 'of Smith. He identified his account filed for alloWance by the probate court .and -téstified that he had made a mistake as to the interest, but that with that exception the . itemS Were ' Correct; that he had . furnish6d the articles shown , 13 3T . the itemized acconnt.: Smith had a policy in soMe company in which his 'wiclOW was the
ARK.] SMITH V. MULLEN. 945 beneficiary, and on that pblicy Mullen paid the preralurn for Smith for two ea Ts.t Smith was-a tenant On Mullen's place for three years: A The first 'year Smith made arrangements with• Jories -& Green , ' to furnish' him,' :arid Mullen . signed Smith's mote as . seCurity for 'the amount. : Mullen did not kno* exadtly *hat the . arnount *as for' the year . 1920. : *-- • ; • . - -•, '• The effeet Of testimony, -Without 'Settirig.the same onein detail, l it'as 'that the itein g Of hiS acCount were cOrreet, , except as . ib' the interest He _testified that he_and Sniith werk' to diiidk the pr_OceedS Of the'Crop halt arid halt Mullen was a sked : there' Were 'no credits of any cotton raised and grown by Sinitli:dhririgbi0;6hrs he was . a tenant ori *itnesS' plcèand WitrieSS' replied that he was hot buying cotton ; H stated ":11iat -When 7 Sinith weirho the store to" pay bi g 'acebtint he arrariged the sari4'with the merchants, 'and - fa? whatevef'balande &Mill would Make a riote he (Mrilleri)'''signed the ' saMe as security for . 'Sriii-th.' The orily'credit 'Sthith'gOt hiS account 'during those: years was -fOr ''SOnr6 .hay witness •got: from himi Mullen testified 'that the thote , for; $900, executed to Jones & Green and signed by theVitness, waS for. supplies furnished Smith: -This.note witness on the date on which same is marked paid.,: Wit ness4estified also that l he furhished-Smith ithe' itents of the supplies set out in hi g— account,. ,-. The policy of 'life insurariCe for ,$2,000 on the life of :Smith in- favor ,of Mñllen dslithe 'creditbr 'of Smith was identified,and,in; fro -di:tad in . evidence. • :) • The . teStirrionotr behalf of the ap'pelle6 by three wit-neg se§ *asle . the 'effect that Sinith tOld 'them that he had insured his life for the benefit of Mulleti,"and tivo'of theSe Nvitnesses testified , that l Smith- g tated thatlie owed Mullen enough to Cover thO , Itinount . of: the . policY,' or . mOre; for supplies furnished him for which . Mullen had Paid;.i Mrs. Smith teStified in her oWri 'behalf in' subStarice that 'her husband owed Mullen at the4inie "ofhideat h $104.03, 'and th'at he r Owed r, JOiles Gitert • i$160';',and
946 SMITH T. MULLEN. [169 1 little ,over. 'She ; stated' that Jones cani6 to their ;house while. her Jmsband i was sick, and.he signed a blank note, but they, did not i aettle _that night. ,She , knew . that .her •usband did not„owe Jones & Green $960.: -Her husband .made. a note to :Jones & Green thelast year.: : $he, identified the-signature of her i lmsband p n three;notes, but did not think he signed the $900 note. The signature, on.that note did . not look like . her husband's. , She . was Asked: you:say that you didn't testify and admit, ip...the probate court that it was his signature," and she, replied, That question was not asked:me.;",. Sbe stated thatshe didn't, remember that her attorney ,made such admission before the probate -court: Wi liness, :John Green testified for the appellant that he :Was ,1/4a; member of the . firm of Jones & Green, during the years that Smith traded with his_firm. ,He identified notea that .had , been execnted to his firm, by ,Snaith, cluding,all : .the:notea referred to in the testimony of .apT pellee, and among them the : note for .$900. In rebuttal W. P. Smith, attorney for appelleeitesti-- fied,that on . the trial.of Appellee's claira before the probate :court .Mrs. Smith e and her attorney both admitted thatallthe signaturé§"On the notes Were signed by-F. M. '.•:' • ' • 1., : There !is •riothing in the testimony Of the . appellant 'or of her, witness Greenwhich tends to contradict the testimony, of the witnesSes for the appellee. This testiL meny , fot appellee show§ eoriclusively:that Sinith had rhi§ life insured in favor of the appellee.in the suM of $2000: He stated that he owed appellee that amountor more and insured hiS iife tO protect the appellee against the loss of this indObtedness.. , ..; , • : The appellant 'contends that the notes Of F. M. Smith to' the firm:of Jones & Green for•$900 *and $132.67 should not have been paid by the appellee Without due authentication. But these notes were the notes also of the appel-lee, and:the appellee was bound to pay the same, and had the right to pay the same,without the : necessity of :a pre-
ARKfli SMITH V: MTJLLEN. 947 sentation to him -as 'the 'Administrator 'Of the estate of Smith. Afterpaying the same,,the appellee as the holder of the notes and owner thereof,. had the right to present ,indluding theSe 'note's to the 'Oobate A odurt for allowance 'against the estate Of Smith. The, appellee 's claim against theestate of Smith was,duly authenticated.._ .2. The appellant next.contends that .the court erred in directing the jurY to . return a verdict finding that the interest of'appellee in the PolicY'of insUrance intródueed is the , face value of , the , policy. The evidenCe is,SKfOrth,, and 'its'peakS fer itself We are , douvinCed that the Un: disputed . evidence, shows, that the estate . of-,Smith9 at ,the time of his death was indebted , to the-apPellee : firth 'sum greater' than the value of the policy on Sthith'slife. This policy was issued . riaming the appellee 'as the beneficiary, fOr the pUrpose of protecting him as , the CreditOr of Sruith for,the amount of, -Sraith 7s - indebtedness to the . appellee. The testimony of Mrs. Smith was of a negative character, and"didottend to-Contradict the testirtiony' Ou behalf of the 'aiipellee: The' testimony' on behalf Of, the a'pfellee positively identified the , notes as the c notes , of , Smith, , and - establfshed the correctness, of .his , account, and also ' established, the .fact . that Smith, -during..his life,' adulated that he 'owed-appellee . more , than the face value' of the pblicY, and'had obtained'insfitance on hiS life tO,'Ptect the appellee. The judgment is in all things correct, and it is therefore affirmed. " ,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.