Shackleford's Administratrix v. W. Gates and others, 35 Tex. 781

Walker, J. This was an action brought by the heirs of A. B. Gates against his executors, to recover for the hire of certain slaves, the individual property •of the heirs, and whose labor and services, it is alleged, A. B. Gates in his lifetime had used and appropriated to his own benefit. Certain creditors of the estate of Gates, during the progress of the suit, were permitted to intervene. The showing made by these interveners should not have entitled them to become parties in this action.

It is the -duty of administrators and executors to defend the estates which they represent against all unjust or fraudulent claims; and if they fail in so doing, they are .guilty of malfeasance or misfeasance, as the case may be; and heirs, legatees and creditors may enforce such liability against them and their securities. But to allow every creditor of an estate to intervene, or, more properly speaking, to intermeddle, in suits between the executor and any other creditor, simply because they say the litigant creditor is endeavoring to enforce an unjust or fraudulent claim, would be an abuse of the law.

Creditors must rely upon the honesty and integrity, voluntary or enforced, of the representatives of the estates of deceased persons. In this case, it is true, the executors do not appear to have resisted the claim of the plaintiffs ; and there may be a reason for this, growing out of the fact that a swarm of intervenors were let in who vigorously defended the action ; but for this there was no necessity. The executors were officially and legally bound to defend this action, if they had reason to believe the claim ought not to be allowed against the estate.

There was error in permitting the intervenors to come into the case, and that error was propagated in overruling the motion to turn them out. The court, however, may have reserved them for a more just fate, to-wit, the payment of a bill of cost. But all this is perhaps unnecessary, and but for the good it may do in preventing a recurrence of this kind of boggling and intermeddling, we should have pronounced no opinion in this case; for it is impossible to say, from anything inside or outside the record, how it comes before us.

There is no notice of appeal; there is no appeal bond; no petition for a writ of error ; no citation in error, nor any service of any writ of error. The clerk of the district court informs us that the transcript was demanded and delivered on the third day of January, 1872; but by whom demanded or to whom delivered, we are not informed. The transcript is, however, marked “John Shackleford’s Administratrix et al., appellants, v.

Intervenors.” Though the Shackle-fords may have come into this case, claiming to represent the estate of John Shackleford, deceased, yet their position in the case is not such as to entitle them to an appeal on their bond as administrators. (Art. 1384, and Note 523, Paschal’s Digest.) There is a question of law raised by the appellants’ counsel, which we will notice pro bono publico. It' is claimed that

Article 1371, Paschal’s Digest, does not. authorize a testator whose estate is insolvent, by his-will, to provide that there shall be no other action in the county court, in relation to the settlement of his or her estate, than the probating and registration of his or her will, and the return of the inventory. The language of the

article is so plain, to-wit, “Any person capable of making a will may so provide by his or her will that no other action shall be had in the county court,” etc., that we can scarcely imagine upon what doubt or hypothesis this question, novel in its-character as it is, could have been raised. The cases-referred to in the note following this

section of the statute (note 515) distinctly point out the remedy which the law furnishes in all cases likely to arise under it. Were the argument supported by authorities, it is-claimed that the principle would not apply in this-case, as A. R Gates is claimed to have been entirely solvent at the time of his death. The appeal in this case must be dismissed. Dismissed.