Opinion
7 Div. 378.
February 18, 1937. Rehearing Denied March 18, 1937.
Appeal from Probate Court, Cherokee County; T. R. Snead, Judge.
Savage Savage, of Centre, for appellant.
The report of commissioners makes a prima facie case as to value and area; the law presumes they have performed their duty. Quick v. McDonald, 214 Ala. 587, 108 So. 529.
Irby A. Keener, of Centre, for appellee.
The finding of the probate judge on evidence ore tenus is like the verdict of a jury, and will not be disturbed by the reviewing tribunal except for ground which would warrant the setting aside of a jury verdict. Rogers v. McLeskey, 225 Ala. 148, 142 So. 526; Darrow v. Darrow, 201 Ala. 477, 78 So. 383; Hagood v. Spinks, 219 Ala. 503, 122 So. 815; Andrews v. Grey, 199 Ala. 152, 74 So. 62; Gray v. Weatherford, 227 Ala. 324, 149 So. 819; Cox v. Stollenwerck, 213 Ala. 390, 104 So. 756; Henderson v. Henderson's Adm'r, 67 Ala. 519; Milner v. Lewis Son, 20 Ala. App. 598, 104 So. 444; McFry v. Casey, 211 Ala. 649, 101 So. 449; Ray v. Watkins, 203 Ala. 683, 85 So. 25; Goldsmith v. Gates, 205 Ala. 632, 88 So. 861.
Generally speaking, the finding of the judge of probate, on evidence ore tenus, is like the verdict of a jury and will not be disturbed upon a review of that tribunal, except for grounds which would warrant the setting aside of a verdict of a jury. Rogers v. McLeskey, 225 Ala. 148, 142 So. 526, and other cases cited by counsel for appellee. These cases, however, did not deal with cases like the one at bar, that is, involving the setting aside of the report of a duly appointed commission setting aside the exemptions to the widow and the fixation of the value of the homestead, and, while as held in the case of Foote v. Foote, 224 Ala. 394, 140 So. 603, the report of the commission being ex parte, is not entitled to the same force and effect as the finding of a register or a jury after hearing the evidence of both parties, yet they had the advantage of viewing the premises and making their report under oath, and the burden of proof was on the exceptor to overcome the valuation so fixed by the commission by clear and convincing evidence.
After a careful consideration of all the evidence and giving due weight to be awarded the conclusion of the trial court, we think the weight of the legal evidence supported the valuation of the homestead as fixed by the commission and that the exceptors did not meet the burden cast on them of showing that it was wrong by clear and convincing evidence.
The trial court erred in sustaining the exceptions to the report of the commission, and the decree of the probate court is reversed, and one is here rendered overruling the exceptions, and the case is remanded for such further orders as may be necessary to confirm the appellant's right and title to the homestead.
Reversed, rendered, and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.