William Oldham, use, &c., v. Alfred Smith's Adm'r., 26 Tex. 530

Wheeler, C. J. We are of opinion that there is no error in ■the judgment. After the first administrator, Henderson, had petitioned to resign, his account had been audited, and he ordered to deliver over the estate of his intestate to his successor when qualified, he could not be required to perform any other act in his car pacity of administrator.

He had discharged himself of the trust as far as it was in his power; and the only reason why he was not fully discharged from the office was that it was necessary that he, having charge of the estate, should be responsible for it in his official capacity, until his successor could be appointed and qualify, and the estate be delivered into his official charge. (Hart.

Dig., art. 1146.) If he could be required to admit claims against the estate, he might, with equal reason, be required to perform other duties appertaining to the administration of the estate, which would require a new exhibit of the condition of the estate, and a re-statement'of his accounts; and thus he might be compelled to continue the administration until the succession was closed.

Such was not the intention of the law. (Ibid.) The presentation of the claim to the administrator pro tern,., Hubbard, could be of no avail, because his functions had been suspended by the restraining order of the district judge. . There having been no presentation of the plaintiff's claim to any administrator of the estate, authorized to pass upon and allow or reject the same, before the institution of the suit, it was rightly dismissed; and the judgment is affirmed. Judgment affirmed.