
    No. 5925.
    SUCCESSION OF HONORS SIMON and MARY S. MON, HIS WIDOW.
    Syllabus.
    The burden of proving payment rests upon him who relies thereon.
    Appeal from the Civil District Court, Parish of Orleans, Division <lB,” No. 101,626. Hon F. D. King, Judge.
    P. W. Hart, for appellee.
    Heath & Moise, for appellant.
   His Honor, EMILE GODCHAUX,

rendered the opinion and decree of the Court, as follows:

Prior to her death, Mary Simon, colored, was sued for $377.50 by Adelaide Conrad, also colored, for services and supples furnished and expenditures advanced to her by the latter from March 4th, 1912, to July 7th, 1912. Mrs. Irvine, the executrix and beneficiary under the will of Mary Simon, having failed to place this claim in the pending safe upon her account, Adelaide Conrad thereupon filed opposition thereto, demanding the recognition of her aforesaid claim, together with the costs incurred in her suit. The opposition was dismissed and she now appeals.

The fact that opponent did render services to decedent is clearly established by the record. Her testimony to that effect is corroborated by that of the attending physician; by that of a sister of opponent; by that of a neighbor of decedent, and also to some degree by that of another physician, a witness for the executrix. The only other testimony in this connection, that of the executrix herself, tends to show, not that no services were rendered, but that they were not as extensive and continuous as opponent claims.

In fact the true defense of the executrix appears to be that opponent was paid in full for her services and expenditures during the lifetime of decedent. The only evidence to sustain this defense, however, consists of certain declarations of decedent prior to her death to the effect that she owed opponent nothing and had paid to the latter some small sums from time to time. In view of the fact -opponent, as a witness, positively denies that she has been paid, this evidence is wholly insufficient to sustain the burden resting upon the executrix of establishing the defense of payment.

It is clear, however, that opponent has greatly magnified the nature, extent and value of her services, and we are satisfied that an allowance of $108.50 will amply compensate and reimburse her for all services rendered and expenses incurred in the premises, .as well as the costs of her separate suit.

Opinion and decree, January 12, 1914.

It is accordingly ordered that the judgment be annulled and set aside and it is now decreed .that the account of the executrix herein be amended by placing thereon the opponent, Adelaide Conrad, as a creditor of the estate in the sum of $108.50, with interest thereon at five (5) per centum from November 4th, 1912, as well as the costs by her incurred herein in both courts. And. as thus amended the said account is approved and homologated.

Judgment reversed.  