N. A. Gaston, administrator, v. John A. Boyd, 52 Tex. 282

Moore, Chief Justice. The demand upon which this suit is prosecuted was presented to appellant for allowance as a valid claim against the estate of which he is the administrator on September 4, 1871, and was by him on said day rejected. This, as was decided by the court when the case was before it on a former appeal, (Gaston v.

McKnight, 43 Tex., 619,) put-in operation the limitation of ninety days allowed by law for instituting suit upon it. (Paschal’s Dig., art. 5659.) As suit was not commenced within ninety days from the rejection of the claim, but near two years thereafter on a subsequent presentation and refusal of the administrator to again act upon it, the action, as originally brought, could not be maintained; and on the case being remanded, appellee, by amendment of his petition, made the heirs of appellant’s intestate parties to the suit; and instead of seeking, as in the original petition, a judgment against appellant, to be paid in due course of administration, asked that appellant should be required by the court to at once and without delay make a final settlement of the estate in the County Court, and that the property in his hands be distributed among the heirs, and' the land upon which his debt was claimed to be a lien be held in their hands subject to its payment.

On the trial of the case, as presented by appellee’s amended petition, it was adjudged by the court that appellee’s demand “is hereby established as a just and legal debt against said estate after the same shall be discharged and relieved from the jurisdiction of the County Court.” And further, that “it appearing from the evidence that there exists no good reason why the administration of the estate of M.

L.Wcst should not be closed, and the property delivered over to the heirs of said estate, it is therefore ordered and decreed that said administrator proceed without delay to close said administration, or that he show to the County Court a good and valid reason why it be not done.” It was also “ adjudged and decreed that appellee take nothing herein against appellant, but that he have and recover his cost, and that the further action and judgment in the cause be suspended until the next term of the court.” From this judgment appellant prosecutes-this appeal.

The first question for our consideration is, whether this judgment is so far final as to support the appeal by the administrator. We think it is.' It disposes of all matters of controversy that can arise for determination between him and appellee on the pleadings. It requires the appellant to close the administration, &c. The purpose of continuing the case until the next term is, we infer, to enable the court, by a supplemental decree, to subject the property of the estate, which it supposed would come into the hands of the heirs by that time, to the payment of appellee’s debt.

The fact that a case is continued to carry into effect a judgment finally settling and adjusting the matters in controversy, does not prevent an appeal. The judgment being such as will warrant the appeal, is there any error in it of which appellant can complain ? That there is, we think is fully and definitely settled by the former judgment of the court in this case.

It is a familiar and well-established principle, that when the law regulating the settlement of estates prescribes that debts against the intestate must be presented to the administrator within a given time or be barred, the failure to do so will bar a recovery, notwithstanding the period allowed for presentation may expire before the completion of the bar by the general law of limitation. (Graham v.

Vining, 2 Tex., 433.) [Opinion delivered December 12, 1879.] The law “ regulating proceedings in matters of probate ” applicable to this,case, while it requires all claims for money, whether evidenced by judgment, mortgage, or note; to be legally exhibited to the administrator before they will servo as the legal foundation of a proceeding against him for their enforcement, permits such claims to be exhibited to the administrator, subject to the conditions imposed by law, at any time before the estate is closed, if not barred by the general law of limitation.

But the law further provides, that when once exhibited, if rejected, they shall be barred, unless suit shall be instituted on them within ninety days after their rejection. Bow, to hold that notwithstanding the presentation to and rejection by the administrator of a claim, it may be again exhibited to him, and if not allowed, or without a subsequent presentation, suit may be brought upon it, would be to disregard and set at naught the express and unequivocal declaration of the statute that such claim shall be barred.

The failure to sue within the time limited, when the claim is rejected, must as effectually extinguish it as the failure to present it within the time required under the former law. When a claim is barred by a failure to present it to the administrator, it is barred against the heirs as well as the administrator, notwithstanding its payment was secured by a lien upon land; (Graham v. Vining, 2 Tex., 433;) for, with us, administration is had as well of real as personal property.

The failure to note this difference between administration under the statutes of this State and at common law, it is believed, occasioned the error into which, in our opinion, the court has fallen in its judgment in this case, and for which it must be reversed and the cause remanded. Reversed and remanded. [Associate Justice Bonner did not sit in this case.]