BOGLE et al. vs. BOGLE'S ADM'R, 23 Ala. 544

GOLDTH WAITE, J. We think the court committed no error in overruling the objections taken on the trial below, by the plaintiffs in error, to the admissions of Haynes, the administrator de bonis non. These admissions were made by him while acting in that capacity, and were to the effect that the intestate, Samuel Bogle, had made a settlement of the estate with him. The law is settled in this court, that the administrator may discharge himself by showing that he delivered to his successor the assets of the estate which remained in his hands unadministcrod, (Skinner v. Frierson, 8 Ala. 915; Gayle v.

Elliott, 10 Ala. 264;) and the admissions of Haynes, if they were legitimate evidence, tended to establish that fact. It is true, that an administrator cannot create a charge against the estate, either by his act or admission ; but this evidence is not of that character.

Haynes, by virtue of his appointment, had authority to receieve from the former administrator the assets which remained with him unadministered, and as his receipt would have been competent evidence of that fact, so his admissions made while he was administrator, tending to establish the same fact, were upon the same principle admissbile.—Starke & Moore v. Keenan, 5 Ala. 590; Pharis v. Leachman, 20 Ala. 662. We consider it unnecessary to inquire into the rulings of the court upon the. other portions of tho evidence.

Much of it was illegal, but if it had all been rejected, we think enough remains to sustain the judgment of the court; and as under the act of 11 February, 1850, (Pamphlet Acts 27,) it is the duty of the court to decide questions of fact, growing out of administrations, without the intervention of a jury, unless upon the application of one of the parties, it follows that its action upon the whole evidence is a matter of law, and revisable here in the same manner as the decision of the court upon questions of fact arising upon a trial in the common law forums, which are referred to the court rather than the jury ; as where the competency of a witness is to bo determined, the loss of a writing, or other questions of a like character.

In these cases, this court will look to the whole evidence, if it is to be found in the record, and will not send it back for another trial, if enough remains to sustain its judgment, rejecting testimony which may have been illegally admitted.

Applying this rule to the case before us, we find the slaves belonging to the estate of James Bogle are proved to have remained in the possession of tho widow, from the time of his death until her marriage with Haynes, and from that period in his possession; that much the greatest portion of the other personal property was bought at the sale by the widow, and the note given by her, which was offered in evidence, it is fair to presume from its bearing date within a few days after the sale was made, was given by her for the purchases made on that occasion.

The fact that this and other notes made by Haynes, payable to Samuel H. Bogle, as administrator of the estate, were retained in the possession of the latter, is not important, as they could not have been collected by him after Haynes took out letters, (Durham v. Grant, 12 Ala. 105,) and by his marriage with Mrs. Bogle, and taking upon himself the administration, Haynes became chargeable with these debts.—Childress v. Childress, 3 Ala. 752; Duffie v. Buchanan, 8 Ala. 27.

That these notes were placed in the hands of an attorney for collection, would militate against the idea of a full settlement, if it was shown to have been after tho settlement was had. The evidence does not establish at what time this was, and it is not to be presumed that it was after Haynes took out letters, as no action could have then been sustained upon them.

The main facts, that Haynes was in possession of by far the greatest portion of the property belonging to the estate, and that after a bitter controversy, in which he, as the representative of all the distributees, endeavored to force thejintestate of the defendant to a distribution of the estate, he admitted that he had a settlement with him, are, we think, sufficient under the circumstances to sustain the judgment. The relative position of Haynes and Samuel H.

Boglo gives to the admission of the former great weight, and authorize it to bo taken in its broadest sense; and although the lapso of time may not, of itself, be sufficient to create the legal presumption of a settlement, we are not disposed, after a period of eighteen years has passed, to force conclusions, or even to draw any inferences not clearly warranted by tho evidence, in favor of a distributee who has had tho most ample time and opportunity to assert his rights, and has made no effort to do so, until after the death of the party. He is entitled to no favor under such circumstances.

We all agree that rejecting all tho evidence objected to, except that which we have decided was admissible, enough remains to sustain the judgment, which must bo affirmed.