Thomas F. Lawson v. W. S. Kelley, 82 Tex. 457

GARRETT, Presiding Judge,

Section B. —The first and second assignments of error present the question relied on by the appellant for a reversal of this case: Did the decree of the District Court of Harrison County in cause Ho. 5055, wherein James E. Brown was plaintiff and Wm. Uindenstock, as administrator of the estate of Jonathan S. Brown, deceased, was the sole defendant, convey title to the land as against the heirs of Jonathan S. Brown, who were not parties to the suit1?

Counsel for appellant earnestly contends, in a very able brief and written argument, that under the law as it existed at the time the decree was made, judgment in a suit for the title to land brought against the administrator alone without making the heirs parties thereto would not bind the heirs as to title; and would only determine the right of the administrator to possession for the purposes of administration.

He reviews the decisions relied on in support of the validity of such a decree, and pronounces them either obiter dicta, or as inapplicable to this case by reason of the proceeding being under the statute authorizing such suits. We have given the question very careful study, and must confess that it is not without considerable difficulty. The case of Barrett v. Barrett, 31 Texas, 344, which held the heirs to be necessary parties to' such a suit, has been overruled in express terms by the opinion in the case of Gunter v. Fox, 51 Texas, 386, and in Boggess v. Brownson, 59 Texas, 420; but in Gunter v.

Fox, and also in Boggess v. Brownson, the administrator was plaintiff, and there was a statute authorizing him to sue, hence the authority of those cases is denied. So also the cases of Guilford v. Love, 49 Texas, 730; Morales v. Fisk, 66 Texas, 194, and other cases, may be distinguished in the same way. It is contended that by operation of the statute the land in controversy on the death of J. S.

Brown descended and vested in his heirs subject to administration, and that whatever right the administrator had to the land must be found to be conferred by the statute, since at common law real estate did not go into the hands of the administrator, but descended to the heirs; that the right of the administrator is only a qualified interest for the purposes of administration.

But. from a review of all the decisions it seems that it has been the settled rule of our Supreme Court to construe the probate law of this State, as it existed up to 1870, as conferring by its general effect the right on the administrator to bring and defend all suits concerning the property, of the estate. Thompson v. Duncan, 1 Texas, 487; Howard, Admr., v. The Republic, 2 Texas, 312; Graham v. Vining, Id., 439. These decisions just cited were made before the Act of 1848, which was the first statutory authority for suit by the administrator.

They have been followed by a continuous line of decisions, which have cited them as authority, and reiterated from time to time the rule therein announced. In the case of Ottenhouse v. Burleson, 11 Texas, 87, brought after the passage of the probate law of 1848, which authorized the administrator to sue, it was held by a majority of the court that the heirs need not be made parties defendant with the administrator.

That was an action for specific performance, but not upon a bond for title or other written obligation for a conveyance of the land; it was upon a verbal sale, followed by improvements, and the decision recognized the general authority of the administrator under our probate system to defend suits brought for the lands belonging to the estate.

While the expressions in the later decisions of the Supreme Court may not have been called for by the facts of the cases before them, yet under the earlier decisions the doctrine assailed is held to be the policy of the law, reached from a consideration of the probate system as a whole. As the law was prior to 1848 the administrator had no more right to sue than to defend; yet in Howard, Administrator, v. Republic this language is used: “The act of the administrator is not for his own advantage, but for the benefit of the heirs of the deceased.

Having the care and control of the entire estate, it would seem to be his peculiar duty to prosecute and defend suits in which the succession is interested during the continuance of the trust he has assumed.” The right alone to recover possession of the land for the purposes of administration could not have been in the mind of the court, for possession without title would be of little value where lands are to be administered and sold for the payment of debts.

If it were presented to us as an original question we might be disposed to take a different view; but there is a line of decisions, although most of them not strictly authority, adopting a rule of law under which property rights have accrued, and it is too late now to change to a new rule, although it might be a more logical one. The question is now fully settled by the statute. Rev. Stats., arts. 1201, 1202. When the decree of the District Court of Harrison County was rendered the cases of Graham v. Vining, Howard, Administrator, v. Republic, and Thompson v.

Duncan, and other cases to the same effect, had already announced the rule that the heirs were not necessary parties to a suit brought by or against an administrator concerning land belonging to the estate. We are of the opinion that the decree was binding on the heirs of J. S. Brown. Appellant cites the case of Rudd v. Johnson, 60 Texas, 91, in support of his third assignment of error, that the community interest of Mrs. Cynthia Brown did not pass by the decree. It will be observed that in the case of Rudd v.

Johnson, the wife, owning a community interest in the land, died some time prior to the death of her husband, and there was no administration until his death and none on her estate. In the case before us the land was already in the course of administration as the community estate of the husband and wife when Mrs. Brown died; it had been inventoried as community property of the estate of J. S. Brown and his surviving wife, and was subject to administration as such; and the death of Mrs. Brown would not have the effect to withdraw it from the administration. The community interest of Mrs.

Cynthia Brown also passed by the decree, and the judgment of the court below should be in all things affirmed. Adopted December 8, 1891. We report the case for affirmance. Affirmed. Judge Fisher, having been of counsel, did not sit in this case. A motion-for rehearing was refused.