#### MARY E. LAWRENCE et al. BY THEIR GUARDIAN vs. JAMES R. RAYNER ADM’R. OF ALPHEUS LAWRENCE.

Where an administrator (of one who died before the passage of the Act of 1844 ch. 51) by consent of the heirs of his intestate, sold land belonging to them, and one of the heirs, who were also the next of kin, had been advanced of personalty 1 — Held, that in the distribution of the fund arising from the sale of the land, among the next of kin, the said advancement cannot be taken into account — that? fund being considered as realty»

A Court when called on to determine facts upon testimony is, like a jury, bound to take into consideration all that a party may have said at the same time; but it will scrutinize the statement, and if it believes a part of the same to be improbable, or at variance with other established facts, it Will reject that part until other proof is offered to sustain it.

This was an action of debt upon the bond given by the defendant Rayner, as administrator of Alpheus Lawrence, deceased. It was brought upon the relation of the infant children of the said decedent by their guardian, and the breach assigned was the non payment to the relators, as next of kin, of the amount due them from Rayner, as administrator. Pleas, conditions performed, and not broken. In the progress of the cause, it was referred to the Clerk to state an account of the administrator with the estate of his intestate. In the account, which accompanied and made part of the report of the Clerk, he credited the administrator with $758,63, the principal and interest of certain notes alleged to have been due from the estate of the intestate to the estate of his father, Reuben Lawrence, deceased, of whom the defendant Rayner was also administrator. The plaintiffs contended that this credit was erroneous, alleging that the said notes had been paid in full by their father in his lifetime, and that he had a receipt therefor, given by the said Reuben, in the following words, to-wit:

“Windsor, May 15th, 1841. Received of Alpheus Lawrence, at different times inclusive, the sum of five hundred and forty-nine dollars and forty-six cents, in full for the following notes, viz: one for $125, due 1st January, 1837, one for $95, due 1st Jan. 1838, one for $75, due 1st January, 1839, and one due 13th February, 1839, for the sum of $180.

Reuben Lawrence.”

The genuineness of this receipt and the truth of the payment were contested by the defendant, and the clerk examined several *114witnesses in relation to the matter, and submitted the testimony with his report.

In the account, the clerk credited the estate with $105.99, as the share to which the intestate was entitled, as one of the three next of lcin, from the estate of his father, the said Reuben Lawrence. The balance due from the defendant Rayner, as administrator of the said(Reuben, as appeared upon an account stated by the Clerk, was $963.73. This balance arose from the proceeds of real estate, sold by the consent of the family, or some of them, (but after the death of Alpheus) in lieu of personal property; and it was admitted that had the personal property all been sold, it would have been entirely exhausted in the payment of debts, and there would have been nothing left to distribute among the next of kin of the said Reuben. The clerk credited the estate of Alpheus with the sum of $105.99 only, for the reason that the said Alpheus had been advanced by his father to a greater amount than either of the other two children. The advancements were altogether of personalty, and made before the Act of 1844, ch. 51, the said Reuben having died on the 25th day of February, 1843.

In the account, the Clerk credited the administrator with an allowance of Commissions at the rate of 5 per cent, on $6,935, the amount of his receipts, among which vTas one for $2,500, the price of a tract of land sold by him; and 2\ per cent. on $4,376.10, the amount of his disbursements.

Upon the coming in of the report, the plaintiffs filed the following exceptions:

1. That the Clerk admitted incompetent evidence and credited the defendant as administrator of Alpheus Lawrence, with $758.63, for notes due from the said Alpheus to Reuben Lawrence.

2. That the estate of Alpheus Lawrence is credited with $105.99 only, as the distributive share of the said Alpheus, on the estate of Reuben Lawrence, whereas it ought to have been credited with $321.24, the one-third part of the general balance.

3. That the defendant is credited with too much commissions in the account of his intestate’s estate.

These exceptions coming on to bo argued before his Honor, Judge Manly, at Bertie, on the Fall Circuit, 1852, he overruled *115them, and confirmed the report in all respects; and from the order the plaintiffs were allowed an appeal to the Supreme Court.

Biggs, for the plaintiffs.

Bragg, for the defendant.

Battle, J.,

having stated the case as above, proceeded : — In examining the testimony taken and reported by the Clerk, we have thrown out of view every part of it which was objected to by the defendant’s counsel, and yet we think his Honor was full}’ justified in overruling the first exception.

It was clearly proved by Mr. Phelps, that Alpheus Lawrence admitted to him that his father, Reuben Lawrence, at the time of his death, held notes against him, stating at the same time however, that he held a receipt against them. The paper purporting to be a receipt, signed by Reuben Lawrence, on the 15th May, 1841, which the relators allege to be the receipt alluded to by their father, expressly acknowledges the existence of such notes, then in the possession of the said Reuben. The existence of the notes being thus established, it became the duty of the relators to shew they were paid by their father in his life time. They contend that they have so done, by the declaration of the said Alpheus, made at the time that he acknowledged that his father held the notes; that he had a receipt against them; and by the production of the receipt itself. They then urge that what their father said in discharge, being said at the same time with the admission with which the defendant seeks to charge him, must be taken as true— a,t least until its falsity is shown.

A Court when called on to determine facts upon testimony, is, like a jury, bound to taire into consideration all that a party may have said at the same time, but like a jury, it is at liberty to scrutinize the statement; and if it believes a part of the statement to be improbable, or at variance with other facts clearly established, it may reject such part, or hesitate in acting upon it, until other-proof is brought to sustain it. We think that the declaration made by Alpheus Lawrence, that he had paid the notes, and held a receipt against them, stands in this predicament: The receipt purports to have been given at Windsor, on the 15th day of May, *1161841 : Reuben Lawrence did not die until nearly two years after-wards; and he and his son lived in the county within four miles of each other; — yet no reason is assigned why the business was transacted in town, or why Alpheus did not call upon his father and take up the notes. Under such circumstances, we think it was incumbent upon the relators to prove the genuineness of the receipt or the payment of the money, by some other independent testimony. This they have not done. On the contrary, what testimony there is in relation to the receipt, increases the suspicion that it is not genuine, and that the money never was paid by Al-pheus, in discharge of the notes. The clerk was therefore right in debiting the estate of Alpheus with the whole amount of die principal and interest of the said notes.

The second exception ought to have been sustained. The balance reported in the account of the estate of Reuben Lawrence, tire father, was composed of the proceeds of real estate, and though permitted to go into the hands of the administrator, ought to have been considered as real estate, in dividing it among the next of kin, who were the same persons as the heirs at law. As real, estate, advancements of personalty could not be taken into the account, in the distribution of it. The Act of 1844, ch. 51, which provides for bringing advancements of personalty into hotchpot, in the division of realty, did not affect the case, because Reuben Lawrence had died before its passage.

The third exception is sustained to the extent of reducing the commissions on $2,500, the price received for the land, to 2^ per cent. It is overruled for the residue.

The report, after being reformed in the particulars above stated, will be, in all respects, confirmed.

Per Curiam. Judgment accordingly.