Chandler v. Hudson's Executors, 11 Tex. 32

Lipscomb, J. Proceedings, in this case, were commenced in the Probate Court, by the appellant, on a petition to be appointed administrator de bonis non, on the estate of John H. Whitehurst.

The petition sets out that in 1838, a judgment was obtained in the County Court of San Augustine county, against the said Whitehurst and one Ford, in favor of Eubanks and White, assigned to Eubanks; that Whitehurst died in 1840 ; and that his widow and John Brown obtained letters of administration, in April of that year, on his estate ; that the judgment was presented to, and accepted by the said Brown in December of the same year, as a just claim against the estate; but it is not alleged that the claim was presented . to the Probate Judge to be ranked among the acknowledged debts of the estate; that Brown in 1849 filed his petition for final settlement, and alleged that the estate was insolvent; that Brown’s account as administrator was approved, and he was discharged from the administration; that Mary Ann Whitehurst, the administratrix, was removed from the administration in May, 1852; that the estate was unrepresented, and that there was property belonging to the estate, that had not been administered, which was liable to be sold at administrator’s sale to satisfy the judgment in favor of Eubanks.

Petitioner alleges that he is the agent and attorney of Eubanks, who is the largest creditor, and prays for citation, and that letters of administration de bonis non on the said estate be granted to the petitioner. The appellees, as executors of Hudson, appeared and made opposition in writing, to the grant of administration, prayed for by the petition. In their opposition, they did not ask to be appointed administrators, themselves, nor that it should be granted to any one else; but the grounds of opposition were: 1st.

Because the said estate has been fully administered, and the administrators discharged upon final settlement. 2nd. That it has been over two years since the final settlement and discharge of the administrator of said estate. 3rd. That letters of administration de bonis non can only be granted in cases of the death, resignation, or the removal of the former administrator. 4th. That the said pretended judgment, in the said petition mentioned, was never submitted to the Judge to be ranked among the acknowledged debts of the succession. 5th. That the pretended claim is not in fact a judgment. 6th.

That the said claim is barred by the statute of limitations. 7th. That it does not appear where the pretended judgment was rendered. 8th. If in fact it were a judgment, it is not properly authenticated. 9th. It is vague and informal, and not a judgment against Whitehurst and in favor of Eubanks and Charles White. 10th. The record containing the evidence of the said claim, is incomplete, and therefore not a record, 11th. This Court could not grant the letters prayed for, without adjudication that all the effects of the said estate had not been disposed of. 12th.

Because the said claim was never properly and legally accepted. The respondents deny that there is any property of the said estate, which the former administrator failed to make any legal disposition of during the administration, and deny that there is any property belonging to the said estate, that is liable to be sold at administrator’s sale to satisfy the aforesaid judgment. They deny that there is any property belonging to the said estate, and protest against the grant of letters of administration prayed for. The appellant demurred to the opposition, and assigned several special grounds for the demurrer.

We, however, do not regard any of them worthy of consideration, but first: The failure of the oppositionists to show any interest in the matter, or to show that they were the executors of Hudson. And, secondly, That their opposition, or intervention, could not be received by the Court, because they neither asked the administration for themselves or claimed that it should be committed to any other person.

The demurrer was sustained, and the order made as prayed, for letters of administration ; and it may therefore be answered to the first objection, that the parties were cut off from proving their interest, by the demurrer, as it is a legal conclusion, that, inthe judgment of the Court, the opposition, admitting it to be true as stated, afforded no sufficient ground for rejecting the prayer of the petitioner for letters of administration. In support of the second ground of demurrer, the appellant in this Court refers to the Act of the Legislature. (Hart. Dig.

Art. 1126.) It is true, that, under this provision, if there was no contest about the vacancy of the succession, there could be no opposition to the grant of the administration, without showing that some one else had superior claim to it, to the claim of the petitioner; but we apprehend that it is different, where the opposition is to any administration being granted at all. In such case, it would seem that any person interested might be heard to make opposition.

From the judgment of the Probate Court, an appeal was taken to the District Court, where a jury was waived and the case submitted by the parties, to the Judge, who reversed the judgment of the Probate Court and set aside and annulled the grant of letters of administration, from which judgment the administrator appealed to this Court, and assigns for error, the reversal of the judgment of the Probate Court. We do not propose to consider the various grounds taken in opposition to the grant of the letters of administration.

If true, they afford abundant grounds to support the judgment of the District Court in reversing the judgment of the Probate Court. We will notice objections presented by the petition itself, on its face. In the first place, it may be objected to it, that it does not show any outstanding, subsisting debt against the estate. It does not show that the claim had been presented to the Probate Judge, to be ranked with the acknowledged debts of the estate.

It presents a claim that (whether it be regarded as a judgment, or not) was barred by the statute of limitations, more than two years before the filing of the petition for letters of administration ; and it has been the acknowledged doctrine of this Court, that the property of an estate passes to the heir, incumbered with the payment of debts. If then, the claim set up was barred by the statute of limitations, it was no longer a subsisting debt, nor incumbrance on the right of the heir, and no legal reason existed for an administrator de bonis non.

The petition shows that an administration had been granted on the estate of the deceased, twelve years before application was made for letters in this case, when the laws governing the first administration required that it should be closed within one year, unless the Court, for good cause shown, should extend the time; and it is not shown that the time was extended.— The conclusion, therefore, is that it had been long since closed, and the legal presumption is, that all the debts against it had been discharged and satisfied. (Boyle v. Forbes, 9 Tex. R. 35 ; Blair v.

Cisneros, 10 Id. 34.) The presumption of payment, from lapse of time, acquires great additional force from the fact, that the judgment was against Ford as well as Whitehurst ; and there was nothing to prevent the plaintiff from running his execution and obtaining satisfaction of the judgment, from Ford. It is therefore probable that in point of fact, it was so satisfied, and that he was again seeking satisfaction from the estate of Whitehurst. If the claim, in point of fact, has never been paid, the party-may justly ascribe his loss to his own negligence.

If he presented it to the Judge to be ranked with the acknowledged debts of the estate, he could long ago have had it paid, either by the administrator, or he could have procured an order of sale of the property of the estate for its satisfaction, if not paid by the administrator. After such a lapse of time, the probability is, that the property has been divided with the heirs, and may be alienated to innocent purchasers; and if such claims, so long permitted to sleep, could receive judicial countenance, there is no foreseeing the extent of the injury, that would follow.

We are of opinion that such stale demands cannot be made the ground for re-opening an estate by granting letters of administration. Whenever a case is presented, showing a legal reason for such delay, we will know how to make the exception to the general rule, based upon presumption. The judgment of the District Court is affirmed. Judgment affirmed.