[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 395 September 15, 1916. The opinion of the Court was delivered by This is a suit on the part of the heirs of W.S. Smith, deceased, against the administratrix of his estate for the purpose of an accounting, settlement, and distribution of the *Page 398 personal property of said estate and the sale or partition of the real estate. W.S. Smith died on March 29, 1911; his widow, Martha C. Smith, was appointed administratrix on May 6, 1911, by the probate Judge for the county of Lee, and she duly qualified as such administratrix and entered upon the discharge of her duties as such. W.S. Smith left no children, but left a widow. The other heirs at law are his brothers, sisters, nieces, and nephews. The case was referred to a special referee to take and report the testimony, and the case was heard by his Honor, Judge Mauldin, at the Summer term of the Court, 1915, for Lee county, who made and filed his decree on August 20, 1916. After judgment was entered upon, the appellants appealed, and by 12 exceptions seek reversal or modification.
Exceptions 1, 2, 3 and 4 raise the same question, and question the ruling of the Court in deciding that the administratrix should be held responsible for any loss sustained by the estate by reason of her conducting the mercantile business after the death of W.S. Smith. The record shows that the administratrix, on application by exparte petition to the probate Court, obtained an order allowing her to continue the business of W.S. Smith, deceased. Neither the heirs at law nor creditors were made parties to this proceeding. His Honor held that the probate Court had no right to grant this order, as the heirs and creditors were not parties to the proceeding. Smith had died March 29, 1911. The evidence shows when Smith died that there were a large number of outstanding contracts made by him to furnish supplies for the farmers that year. Under these circumstances some one had to act and take charge of his farming interest and carry on the crop and carry out his outstanding contracts for the year, and it was within the province and jurisdiction of the probate Court to make the order it did, and neither the heirs nor creditors were necessary parties to this proceeding. It was necessary, under the circumstances of the case, for the representative and administratrix *Page 399 of the deceased to continue the business for that year for the purpose of carrying out the existing contracts and winding up the same and collecting the money due, or to become due, in the fall of that year, and to manage the farming operations of the deceased for that year, and for this purpose to employ such aid as was necessary in the way of clerks, bookkeepers, and overseers to carry on the mercantile and farm operation, paying them reasonable compensation for their services and hire. His Honor was in error in holding that the order of the probate Court was void, and that the administratrix should be charged any loss incurred by the estate by reason of operating the business under the terms of said order, which he found to be $2,877.13. It was necessary for the business to be carried on, and it does not appear that the administratrix did anything that she was not empowered to do under the order of the probate Court, and that Court had jurisdiction and authority to grant the order made; and these exceptions are sustained.
The fifth exception imputes error in decreeing that the administratrix should account to the estate for $630 for one Ford automobile. The evidence fully sustains his Honor's finding that W.S. Smith paid for it, and it was the estate's property. When new, the purchase price was $630. This is the only evidence in the case as to its value. It had been in use for some time, and must have depreciated in value, yet no effort was made by the introduction of testimony to show what its real value was, and the only evidence his Honor had in fixing the price was what was paid for it when purchased. Appellant's counsel admit in argument before this Court that, in the confusion of so much evidence in the case, the appellants overlooked the fact that they intended to introduce evidence in the case controverting claim of the respondents that the automobile was the property of Smith, and its value, but neglected to do so. They had their day in Court, and we do not think his *Page 400 Honor's finding should be reversed under these circumstances, and this exception is overruled.
Exceptions 6, 7, 8, 9, 10 and 11 complain of error in holding that under section 438 of the Code of Civil Procedure the evidence of Mrs. Smith was incompetent, and in ruling that certain books offered to be introduced in evidence were incompetent, and in disallowing claims for rent, and in ruling out Mrs. Smith's evidence in reference thereto. A careful examination of the evidence ruled out as being inhibited by section 438 convinces us that his Honor was in error in so ruling. The claim is made up of four grounds of items: Money alleged to have been collected by Smith in mortgages belonging to her; several debts, being her property and collected by him; rent for six years prior to his death for her real estate, and money borrowed by him from her. Mrs. Smith did not attempt to testify as to any transaction or conversation that she had with the deceased, but as to substantive facts that Smith used certain land and the rental value of the land. The evidence from other sources showed that he handled her mortgages and collected the sums that certain parties paid him; that she never received it, she could testify to the question asked, objected to, and ruled out. It was not prohibited by section 438 of the Code of Civil Procedure. If she proved Smith collected her money, and traced these collections into his hands, that payment was an affirmative defense. If Smith got the money — and that fact is established — it is incumbent on the respondent to show that it had been paid to Mrs. Smith. The books kept by Smith show that he borrowed money from time to time and the evidence shows that Mrs. Smith kept her money in "Victor safe." Smith had access to this safe and borrowed therefrom, as his books show, and no one else had money in that safe except Mrs. Smith. No claims were presented against the estate that amounted to anything except the claim of Mrs. Smith. The books in which an account of Mrs. Smith's claims were kept were *Page 401 kept by Smith himself for her, and the amounts received were entered by Smith himself. He was the bookkeeper, and had charge of her affairs, and all the entries of receipt were made by him, and the books kept by him show the receipts, but fail to show any payments by him to her, or that he turned anything over to her. There is no question but that the deceased used his wife's land for six years and failed to pay rent for this land, but they lived jointly on it, and for the reason assigned by his Honor this exception is overruled. Exceptions 6, 7, 8, 9 and 10 are sustained. Exception 11 is overruled.
Exception 12 is sustained; the estate got the benefit of the crop for that year. Mrs. Smith was the owner of the land and was not expected or required to give up her land for balance of year after her husband's death in March, 1911. She derived no benefit in the way of care and support after her husband's death, and should be allowed reasonable rent for that year.
Judgment modified.