William Cone, administrator, v. William H. Crum, 52 Tex. 348

Bonner, Associate Justice. This is a suit brought by William Cone, administrator of W. It. Crum, deceased, against William H. Crum, to set aside the allowance of a claim in his favor made by the plaintiff as such administrator, and which had been approved by the county judge. Belief was sought on the ground that the claim was allowed and approved through mistake, when the same wras barred by the statute of limitations. The demurrer to the petition was sustained and the cause dismissed.

Although, as a general rule, an administrator cannot revive a claim against an estate which is barred by the statute, yet if his allowance has received the judicial sanction of the approval of the county judge, this, under repeated decisions of this court, will make it such a gimi-judgment that the presumption will be indulged that the holder of the claim was within some of the exceptions which would prevent the bar of the statute. (Authorities cited in Moore v.

Hillebrant, 14 Tex., 315.) To overcome this presumption, the burden of both allegation and proof is upon the administrator, in a direct proceeding for this purpose, to show not only that the claim was barred, hut also that he has some good ground, by reason of fraud, accident, or mistake, for the relief sought. (Eccles v.

Daniels, 16 Tex., 140.) If allowed under such circumstances as would show affirmatively that the administrator intended to commit a fraud upon the estate, or that he was guilty of such gross negligence in the performance of his duty as would amount to such fraud, and that in consequence thereof the claim was approved and thus became a charge upon the estate, then he could not consistently ask relief, but might be made responsible on his bond.

If, however, the allowance was made through mistake, and relief was sought within a reasonable time, and before any just rights of the holder of the claim had been prejudiced, he would be entitled to the equitable interposition of the court. (Jones’ Administrator v.

Underwood, 11 Tex., 116.) This suit was brought within a short time after the allowanee of the claim, and the allegations in the pleadings of the plaintiff, and which were taken as true on the demurrer, showed that this allowance was made under such circumstances of mistake and inadvertence, on his part, as, in our opinion, would entitle him to the relief sought; and for the error in sustaining the demurrer, when the same should have been overruled, the judgment is reversed and the cause remanded. [Opinion delivered December 16, 1879.] Reversed and remanded.