Estate of McDougal

Citations

• 1 Coffey 456

Syllabus

<p>Appraisers—Choice by Court.—In the opinion of this court, it would best subserve the interests of estates if in all eases the court actually chose all the appraisers, instead of having the representatives of the estate or their counsel choose some of them.</p> <p>Family Allowance—Necessity of Notice.—Under section 1464, Code of Civil Procedure, no notice of an application for family allowance is necessary; yet, in the opinion of the court, it would be a salutary rule to require, and the court of its own motion requires notice to be given to the attorneys for absent or minor heirs, or for persons in adverse interest, in all practicable eases.</p> <p>Executor—Duty to Account for Assets.—It is the duty of an executrix to make a showing to the court of the disposition of the difference between what the estate is prima facie entitled to, and what It is claimed was the whole amount received by her.</p> <p>Executor—Removal for Fraud.—The evidence reviewed, and the charge of fraud against the executrix held not proved. The obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue, and a court is not justified in placing upon a person charged with fraud the onus of showing that she is guiltless; on the contrary, it is incumbent upon the person making a charge of fraud to maintain it by a preponderance of proof.</p> <p>Executor.-—The Unfriendliness of an Executrix Toward a Mother, who is striving to obtain what she can by legal means for her children, will not justify the court in adjudging the executrix incompetent.</p> <p>Minor Heirs.—The Court will Endeavor to Conserve the Interests of Minors, and will at all times aid their attorney in obtaining for them their full rights; and any application in that behalf will be welcomed by the court, which regards with the highest favor, the claims of minor heirs.</p> <p>Evidence.—It would be Contrary to all Rules of Evidence to Accept Testimony that lacks clearness and certainty, and