August Buttlar et al. v. Mary J. Davis et al., 52 Tex. 74

Bonner, Associate Justice. This was a suit originally brought by Mary J. Davis against Charles H. Jordan on certain promissory notes executed by him. During the pendency of the suit Charles II. Jordan died, and August Buttlar and Francis Lammers, as independent executors, (who, by the terms of his will, had the power to administer his estate without control of the court, and without giving bond under the provisions of the probate act of 1870,) were made parties defendant.

On the trial below judgment was rendered against them as such executors, and on appeal to this court they were required to execute a bond as in ordinary cases. The judgment below was affirmed at the late Galveston'Term, and judgment entered against the executors as principals, and against the sureties on their appeal bond.

On motion to have the judgment of this court reformed, it was decided that such executors were not required to give bond and security on appeal, and hence that such bond was not a statutory bond upon which this court could enter judgment as in ordinary cases of appeal, and the former judgment was to this extent reformed. The decision of the court was announced, and there not being sufficient time before the end of that term to prepare a written opinion, and the question being deemed of sufficient practical importance to demand one, the same is now delivered.

It has been the law of Texas, since the days of the Republic, not to require bond and security of executors and administrators, as such, in prosecuting or defending appeals in suits, for money or property, contested for the use and benefit of estates represented by them.

The act of 1840 (4 Stats., sec. 58, p. 129) provided: “That in all cases of appeal from any court in this Republic, it shall not be necessary for executors, administrators, or guardians to give bond and security required of appellants in other cases.” This was substantially reenacted by the act of March 16, 1848, still in force, which provides that “ Executors and administrators of deceased persons’ estates shall not be ruled to give security for costs in any suit to recover money due or property belonging to the estate.

And no security shall bo exacted of executors or administrators of deceased persons’ estates in appeals taken in suing for such money or property, or in defending suits brought against such estates for money or property.” (Paschal’s Dig., art. 1503; Ennis v. Cramp, 6 Tex., 34.) In Tucker v. Anderson, 25 Tex.

Supp., 158, it was decided that this article (1503) was not repealed by the’emphatic language of the subsequent act of February 5, 1858, (Paschal’s Dig., art. 1517,) which provides that “Ho writ of error to remove a cause from the District to the Supreme Court shall in" any case issue, unless the plaintiff in error give bond, with sufficient security, for all the costs which may accrue in the Supreme Court and which may have accrued in the District Court.” The only qualification upon this exemption on the right of appeal by executors and administrators, is that contained in the line of decisions of which the case of Battle v.

Howard, 13 Tex., 345, may be considered' the exponent, that where an executor or administrator appeals, in his own behalf, from a judgment which affects him individually, he must give bond ill like manner as other persons. To this effect is the late case of Guest v. Guest, 48 Tex., 210, where the matter in controversy was the personal right of the appellant to retain his position as an independent executor, and in which it was decided that he should have given an appeal bond, as required of other parties litigating for their individual benefit. In the above case of Battle v.

Howard, 13 Tex., 348, it is said: “But where he appeals, in behalf of the estate he represents, from a judgment rendered against him in his representative capacity, it is

an act done within the scope of the trust reposed in him in that capacity, for the due exercise of which the bond he has previously been required to give to insure the rightful performance of the trust is a security, and the law does not require or contemplate that he shall give an additional bond for every such act he may be required to perform in the discharge of his duty to the estate he represents.” This reason would not apply to an independent executor who is not required to give bond. His office, however, is no less one of trust, and by the terms of

section 160 of the probate act of 1870, it is declared that the estate in his possession “shall become, like any other property to be administered under a power, chargeable in the hands of a trustee, and liable to execution in any court having jurisdiction.” (Paschal’s Dig., art. 5628.) Although such executors should be required to perform all those acts which are necessary and proper for the due execution of the trust which they have undertaken, yet it could never have been contemplated to make them, any more than ordinary executors and administrators, liable beyond the amount of assets which properly should have come into their possession.

Good faith and reasonable diligence in behalf of the interest .of the heirs and creditors of the estate, would require that they should exercise a sound discretion, when it was believed that the ends of justice had not been attained, to prosecute an appeal, and for a failure to do this, they might, in a proper case, be liable in damages; but certainly it could not be expected that .they should make themselves and sureties individually liable in any event, by giving a bond, as in ordinary appeals, conditioned that they would prosecute the appeal with effect, and would perform the judgment, sentence, or decree of the Supreme Court in case the decision should be against them. [Opinion delivered at Austin Term, 1878.] Such bond, in case of an insolvent estate, would make the executor liable for the whole amount of the judgment of the Supreme Court, if against him, regardless of the assets in his hands, and regardless of the rights of other creditors equally diligent, and of the claims of preferred creditors; and in the event that he himself could not respond, his sureties might be held subject to pay that which, in equity, could not properly be chargeable against their principal.

As said in regard to the repeal of the statute exempting executors and administrators by the subsequent act of 1858: “ To construe the late statute to have the effect of destroying this special exemption, would require of this court to render a judgment upon the bond against an administrator in his individual capacity, or place the sureties on the bond in a worse condition than that of their principal.” (Tucker v. Anderson, 25 Tex.

Supp., 159.) The class of executors embracing those now before the court have been expressly recognized by our laws, at least since the act of January 9,1843. (7 Laws of the Republic, 14.) Where express provision is not made by statute to require bond and security, it is believed that, in proper cases, the powers of a court of equity could be invoked to protect the estates from waste or mismanagement by them.

They come within the terms of the above act of 1848 (Paschal’s Dig., art. 1503) exempting executors and administrators, in their representative capacity, from giving bond and security; and we are not authorized, where neither justice nor public policy demands it, to make an exception to a plain statutory enactment. Judgment reformed.