Elizabeth Duncan et al. v. A. J. Veal, 49 Tex. 603

Moore, Associate Justice. The transcript in this case exhibits several errors, for which this judgment must be reversed. In the absence of an averment and proof of some special necessity for the grant of letters of administration upon the estate of Thomas K. Pierson, it must be presumed that there was no occasion for it at the date of De Cordova’s application for the appointment of administrator of his estate.

Without clear proof to the contrary, it should be presumed that there were no debts due by or to said intestate, or necessity for an administration upon his estate after the lapse of so great a length of time from his death. The absence of existing debts against the deceased, in this instance, however, does not depend upon mere presumption: the record of the pretended administration demonstrates that there was no valid and subsisting debt against said Pierson at the date of the administration ; nor were any shown to be due to him. The only pretense of such debts is the cost which had been incurred by one Henry L.

Pierson in a futile effort to take out letters of administration upon the estate of Thomas K. Pierson in the year 1838, over ten years prior to De Cordova’s application, which, however, was abandoned before letters of administration were actually issued to him. The costs incurred in this abandoned effort to administer upon the estate were, unquestionably, justly chargeable to the party by whom they were incurred, and not against the deceased or his property. (Marks v.

Hill, 46 Tex., 345, and cases cited.) It is too plain to require argument to demonstrate, that De Cordova administered upon the estate, not for the benefit of those in any way interested in it, but of those to be benefited by the costs to be thereby incurred, or who wished to profit by the sale of the certificate belonging to the decedent.

The time and circumstances under which the pretended letters "were granted, render it obvious, that although nominally he obtained letters of administration on the estate of a deceased volunteer soldier of the Eepublic, he in fact administered upon that of his heirs; and, under the guise and pretense of administration, he attempted to sell and transfer to the principal beneficiary of the pretended administration property of the hen’s with which neither he nor his confederates had any right to intermeddle.

But if the administration had not been wholly unwarranted by reason of the lapse of time between the death of Thomas K.

Pierson and the issuance of the letters of admin- * e istration, his estate should have been administered upon in Goliad county, where he died, and not in Harris, where it is plain he had neither domicil nor property at the date of his death, or at any time prior thereto. (Paschal’s Dig., art. 1260.) But even if the estate of the decedent had been subject to administration in Harris county at the date of De Cordova’s appointment and qualification, the grant of letter’s of administration to him, the order of sale, and the sale of the certificate under which the land in controversy in this case is held, were all in plain violation of the act of January 14, 1841,' entitled “An act to protect the rights of the heirs and next of kin to the members of the Georgia battalion, and other volunteers from foreign countries, who have fallen in the battles of the Republic, or otherwise died in the limits of the same.” There is no pretense that the requirements of this statute were complied with in the grant of the letters of administration to De Cordova, or in ordering the sale of the certificate to which the estate of Thomas 3L Pierson was entitled.

It is claimed, however, that the omission to' do so does not affect the title acquired by the purchaser from the administrator. First: Because the certificate was personalty, and therefore not, as appellee maintains, within the statute ; but, unquestionably, it is within its spirit and meaning.

It was the purpose of this statute to protect the estates of deceased soldiers from just such sales as this; and it would be a narrow and technical construction of it to allow their estates to be stripped of the property given them by. the Republic, and which, it may be inferred, was all they had which an administration could reach, and therefore just that which must have been in the mind of the Legislature, because of a technical distinction between land and a certificate for, or a right to acquire, land.

It was land- that was , promised to those who should volunteer as soldiers for the defense of the country, and it was just such certificates as this which were given them in fulfillment of this pledge. It would be plainly in violation of the spirit and purpose of • the law forbidding the sale of land belonging to the heirs of deceased soldiers, if until its location, the certificate by which the land promised therein by the government could alone be obtained, could be sold without the consent of the heirs.

Second: It is insisted that this act forbidding such administrations was repealed by the act to organize Probate Courts, approved May 11, 1846; hut, evidently, to hold the act of January 14,1841, enacted for the special purpose of protecting the estates of volunteer soldiers from foreign countries who had fallen in battle or otherwise died in the ¡Republic, repealed by the repealing clause of this general act of 1846 organizing Probate Courts, would do violence to the well-established canons for the construction of special and general laws, and their proper relation and bearing to each other.

The judgment is reversed and the cause remanded. Reversed and remanded.