Estate of Vance

SHAW, J.—

This is an appeal from the order settling the final account of Clara M. Vance, administratrix of the estate of Samuel L. Vance, deceased.

The final account of the estate of Samuel L. Vance, deceased, as filed in the court below, showed that the administratrix had received no assets belonging to the estate, and had expended something over one thousand dollars on account of the estate. At the time of the hearing, Bertha A. Smith, as administratrix of the estate of Eliza M. Vance, deceased, filed exceptions to the final account, claiming that the estate of Eliza M. Vance was interested as a creditor in the estate of Samuel L. Vance, and that the administratrix of the latter estate had received money to the amount of $1,290.50 belonging to the estate of Samuel L. Vance, with which she had not charged herself in said account. The exceptions contained no statement of facts going to show that the money did actually belong to the estate of S. L. Vance, deceased. They are based on the bare allegations that the money had been in the possession of Clara M. Vance as administratrix ever since her appointment as administratrix, that it was still in her possession and control, and the conclusion that the said property was a part of the estate of Samuel L. Vance, deceased. Upon the hearing of the account and exceptions, ‘the respondent introduced evidence to prove the disbursements as shown in the account, and the value of the services of the attorneys for which compensation was asked, and rested. Thereupon the appellant, Bertha A. Smith, moved

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the court to disallow the account, on the ground that there had been no proof of the falsity of the facts stated in the exceptions. The court overruled this motion. The hearing proceeded, evidence was given in behalf of the contestant, subject to exception and a motion to strike out, and after the evidence of the contestant was all given, the motion to strike out was granted, and thereupon an order was made settling the final account as presented, and disallowing the exceptions.

1. The court did not err in refusing to disallow the account upon the motion of the contestant at the close of the testimony introduced by the respondent. The allegations of the exceptions are affirmative, and, so far as they related to matters of fact or to the real objections of the contestant, constituted new and affirmative matter in opposition to the account, and it was therefore incumbent upon the contestant to introduce evidence in support of these allegations, and the respondent was not required at the opening of her case to anticipate the evidence in support of the exceptions, and show that the allegations in the exceptions were not true.