Youngs v. Youngs ( 1929 )

SMITH, J.

This action was brought in the form of trespass to try title by Mrs. Ross Youngs, in her, own behalf and as next friend of her minor daughter, to recover of Mrs. Henrie M. Youngs certain real and personal property conveyed to the latter during his lifetime by Ross Youngs, the deceased husband and father of the plaintiffs. It appears from the trial petition that the property was the separate property of Ross Youngs, and that he conveyed it to Mrs. Henrie Ml Youngs, his mother, after his marriage and during coverture. It was alleged by the plaintiff below: “That on or about the 19th day of February, A. D. 1927, the defendant secured from Ross M. Youngs a deed to said property * * * that said deed was wholly without consideration and was obtained by the defendant for the purpose of defrauding the plaintiff and her minor child out ■ of said property.

“Plaintiff further says that she is entitled in her own right to an undivided One-Third (1-3) life interest in said property, and that her minor child, Carolyn Frances Youngs, is the only child of Ross Youngs, deceased, and as such child is entitled to all of said property subject only to the undivided One Third (1-3) life estate in said property of the plaintiff.

“Plaintiff further says that prior to the death of the said Ross M. Youngs, that the defendant by the exercise of undue influence over him appropriated to her own use certain money and personal property, which was the community property of plaintiff and Ross M. Youngs, deceased, of the value of Twenty Five Thousand ($25,000.00) Dollars.”

The trial court sustained the general demurrer to the plaintiffs’ petition, and dismissed the suit upon the plaintiffs’ refusal to amend. Mrs. Eoss Youngs, in her individual and representative capacity, has appealed.

The general demurrer was sustained by the trial court upon the theory that there were no allegations in the petition that there was no administration pending upon the estate of Eoss Youngs, deceased, nor any necessity for such administration. It is conceded that the petition embraced no such allegations nor any equivalent thereof. So is it conceded that the death of Youngs had occurred less than four years prior to the filing of the suit. It appears from the petition, in fact, that the suit was filed just two days after Youngs’ death. The suit was brought by appellants as heirs of Youngs, and was based upon the claim that the property sought to be recovered was rightfully a part of Youngs’ estate at the time of his death, and that title to the property, therefore, passed to appellants by reason of their heirship. The decision of the appeal must rest upon these facts.

It is a well-settled general rule in this state that only the executor or administrator of the estate of a decedent may maintain a suit to recover property belonging to the estate. The heirs of such decedent have authority to maintain such suit only in the event there is no pending administration upon the estate, and no necessity for such administration. So where the heirs bring such action, it is incumbent upon them to affirmatively show by allegations in their petition and by evidence upon the trial that there is no administration pending, nor any necessity therefor, and, where the petition in such suit omits such allegations, it is subject to the general demurrer. Giddings v. Steele, 28 Tex. 732, 91 Am. Dec. 336; Green v. Rugely, 23 Tex. 539; Webster v. Willis, 56 Tex. 468; Rogers v. Kennard, 54 Tex. 37.

Other exceptions to the general rule exist in eases where, there being an administration, it appears that the administrator will not or cannot act, or that his interest is antagonistic to that of the heirs desiring to sue. Rogers v. Kennard, supra; Lee v. Turner, 71 Tex. 266, 9 S. W. 150; Modern Woodmen v. Yanowsky (Tex. Civ. App.) 187 S. W. 728. But the facts constituting the exceptions must affirmativel/ appear in the petition of the heirs bringing suit, in order to avoid the force of the general demurrer. There were no such allegations in this ease.

Obviously, the petition of the plaintiffs below brought this ease under the ban of the general rule stated, and the trial court properly sustained the general demurrer.

The judgment is affirmed.