Bryant

The plaintiffs are heirs and legatees under the will of Phebe U. Cairns, deceased, and distributees under the final decree of distribution. The suit was brought to recover a balance alleged to be due the plaintiffs under the decree of distribution. The judgment was for the plaintiffs, and the defendant appeals from an order denying his motion for a new trial.

The case is: The plaintiffs are entitled under the decree of distribution to the aggregate sum of $4,882.08. of which there was paid to them by the defendant the sum of $2,191.88—leav-ing a balance of $1,690.20, which it is found by the court was paid by the defendant to one O. H. Jones, “who retained and appropriated the whole thereof to his own use, but which last-mentioned payment was made without any right or authority so to do, and . . . was not a proper or legal charge against said estate, or said distributive shares, or any of them.” These findings are fully supported by the evidence. But it will be proper to say that it is claimed by the defendant that Jones, who was his attorney, was also the attorney of the plaintiffs, and that he paid the money to him as their attorney. But no proof of Jones' employment as…