Trammel and another, Administrators, etc., v. T. L. Philleo, Administrator, etc., 33 Tex. 395

Walker, J. On the thirtieth day of January, A. T). 1866, George W. Trammel, by his attorney, filed his petition in the County Court of Rusk county, in the words and figures following; “To the Honorable Chief Justice: “Estate of John Robertson.—Your petitioner, George. W. Trammel, says that he holds a probated claim against the said estate of John Robertson, which is now a legal demand against said estate. That T; L.

Philleo, the administrator of said estate, has funds vin his hands arising from the sale of property belonging to' said estate, in specie, the sum of thirty-five hundred and fifty dollars and twenty-six cents; that the amount of the claim petitioner holds against said estate is a note for twenty-eight hundred and fifty-six dollars, with interest at twelve per cent, per annum from the eleventh of March, 1861. Your petitioner prays that said Philleo be ordered to pay over to your petitioner such amount of said money as may be due him.

Your -petitioner says that said Philleo has sold a large amount of property belonging to said estate, and has paid a large amount of debts due from said estate, in full, when in fact said estate has proven insolvent. Wherefore, said petitioner claims that he is entitled to his pro rata share of the value of said property with the other creditors. ' “GEORGE W. TRAMMEL, “ By his attorney.” Letters of administration upon the estate of Robertson were granted to Philleo on'the fourteenth of March, A. D. 1868. The note to George W. Trammel fell due on the first of April, A.

I). 1862, was accepted for payment December 13,1863, and approved by the chi.ef justice November 9, 1865. On the thirtieth of April, 1866, the appellee filed his final account with the county court, praying that the same he allowed and approved, and that he he permitted to resign his trust. In the meantime the death of George W. Trammel was suggested on the record, and his administrators were made parties. The accounts and vouchers of Philleo were accepted and approved; his resignation accepted, and L. J. Graham appointed administrator de bonis non.

Trammel and Stroud appealed to the District Court of Rusk county, in which court the case was subsequently tried by the court, neither party claiming a jury. The judgment of the county court was in all things approved and affirmed, from which judgment of the district court appeal is taken to this court. Five causes are assigned for error, which are as follows: First—There has been no order of the county court authorizing the administrator to sell any part of said estate for Confederate money—and so the administrator ought to he charged'with such, notes in par funds, or with the value of the property in par funds.

There was no order of this court authorizing the administrator to hire any part of said estate for Confederate notes, and so the administrator should he charged with the value of hiring in par funds. Second—The item of $5763 52, T. L. Philleo’s account, is too indefinite, stating no particulars; strict proof is demanded of the items of the account. Third—Excepts to items of commission for receiving and paying out $1025 37, and item $1229 74. These items are charged as specie on Confederate money received and paid out, whilst his report shows Confederate notes enough to pay himself for said commission.

Fourth—Exceptions are taken to his having paid out some claims in full, whilst nothing has been paid on others. Fifth—There is nothing in said report showing definitely the expenses and income of the plantation, slaves, teams, etc., and they pray for a full, clear and definite statement of all such matters and things. Exception is taken to the allowance of attorney’.s fees, unless the same he shown to he necessary and proper. A full examination of these exceptions by the record and upon authorities has involved the court in much labor.

John Robertson, deceased, left a large estate in lands and personal property, including slaves, teams, domesticated animals, cotton, and implements of husbandry. His estate was largely in debt, hut was undoubtedly solvent, if the administration had heen conducted in strict accordance with law. He owned about thirty slaves at and after the issuing of the emancipation proclamation by President Lincoln. The slaves were still held as property, and were sold as such in the State of Texas as late as the early part of the year 1865.

The proclamation was' a war measure, which was not carried out-practically in the State of Texas until the summer of 1865 ; but this administrator, exercising the ordinary judgment of an intelligent being, took upon himself too great a risk in withholding this species of property from sale for the payment of debts, regardless of the imminent rick of the President’s proclamation being made good-iu et armis-. But we are not called upon in this case to decide whether or not, by. so doing, he has incurred a liability to the creditors of-Jo-hn Robertson.' • .

It further appears from the record that the- administrator Philleo undertook to carry on, and did carry on, Robertson’s plantation during the years 1868-4-5, until the negroes were practically emancipated, thereby incurring-large expenses, and returning comparatively small profits to the estate of Robertson. From time to ' time, as he had cotton on hand for sale, by representing it as. perishable property to the county court, he obtained orders to sell, and did sell it. In every instance he is ordered to sell for cash.

Considering'these orders authority to sell for Confederate notes, he did so, except, perhaps, the last sale which he made. He made due returns of his sales, and they were approved and confirmed by the county court. It appears -by his account current that he paid out about $25,000 in Confederate money to the creditors of the estate, and as expenses in carrying on the plantation; and it is in evidence that he offered to pay the appellants or their -intestate in Confederate money, which they as well as others of the creditors refused to accept.

It appears from the record that at the time of his final settlement, he bad on hand in specie upwards of $8000. His commissions are charged upon Confederate money, received and paid out, and are paid in specie; he has also charged a .commission on his commission. . By the admissions of his counsel in their brief, the property ' which he sold brought four times as much in Confederate money, as it would have brought in specie or par funds.

It is therefore virtually .admitted that had the property been sold according to law, and paid for in anything which could be termed cash, his commission must have been less by three-fourths of the whole amount which he has charged and received. The court cannot refrain from remarking that ordinary liberality would have directed the payment of his commission in kind with that which he gave to the creditors.

The administrator Philleo arrogates to himself much merit for having realized the large sums which he did in Confederate ■ money; but neither they who accepted it in payment of their debts nor those who refused to accept it will accord him the merit of a benefactor.

The appellants not having their claim presented within one year from the granting of letters of administration, it is claimed that they should not he allowed to maintain this suit without showing that there were assets in the hands of the administrator, more than sufficient to pay all preferred claims. (See Paschal’s Digest, Art. 1807.) Had this defense been relied on, it should have been distinctly set up by the appellee ; and by all the rules of evidence the onus probandi would then rest upon him.

But the essential question raised by the exception relieves us of the necessity of giving this objection any further notice. The appellee claims protection under the orders of the county court, and insists that if those orders were even erroneous they cannot be impeached in this proceeding. We have carefully examined the well considered and able opinion of this court delivered by Mr. Justice Bell in the case of Withers v. Patterson, reported in 27 Texas, p 491.

The court say, “ orders and judgments which the court has not the power under any circumstances to make or order are of course null, and being null their nullity may be asserted in any collateral proceeding where they are relied on in support of a claim of right.” (See also the case of Birdwell v. Kauffman, 25 Texas, p. 189.) We are clearly of the opinion that if the county court had ordered the appellee to sell the assets of Robertson’s estate for Confederate money, all such orders would have been null and void, and might be collaterally impeached in this proceeding.

We are therefore of the opinion that there is manifest error in the proceedings of the court below, as set forth in each of the five exceptions taken thereto. The appellee must therefore he charged with the par value of the estate of John Robertson at the time when he sold them ; and as to such debts as he claims to have paid in full, he may himself become a creditor to tbe estate to the extent of tbe pro rata dividend of eaeb of such creditors, if paid in par funds.

It is not the intention of tbe court herein to pronounce the opinion that such creditors as received Confederate money willingly in discharge of their debts will be allowed to revive their claims againstlbe estate of Robertson. We have repeatedly decided that parties so situated are in pari delicto, and are not entitled to relief under the law. The administrator will be entitled to commission only upon the amount received and paid out in par funds, and should not be allowed to charge commission -on his commission.

Attorneys’ fees will be allowed to a reasonable amount, where it is made to appear to the satisfaction of the county court that their services were necessary in the administration. It is not the policy of the law that liberal commissions should be allowed to executors and administrators for settling'the estates of deceased persons, and at the same time attorneys be paid for doing the business. The appellee and the sureties upon his official bond will be liable to the creditors of Robertson’s estate for a correct administration under the law as set forth in this opinion.

The judgment of the district court is reversed, and the cause remanded for further proceedings in conformity with this opinion. Reversed and remanded.