Murphey v. Menard , 11 Tex. 673 ( 1854 )

Wheeler, J.

In support of the judgment of the Court on the demurrer, it is insisted for the appellee, that Article 1230 of the Digest, under which this proceeding was instituted, is in violation of Section 24 of the General Provisions of the Constitution, and void, because not within the object of the law as expressed in its title. This objection we do not think tenable. The 121st Section of the Act in question, does but provide another mode of proceeding to revise the judgments of the County Court. It does, in effect, but give an appeal from the judgment of that Court; and this it was competent for the Legislature to do under the title of the Act in which this Section is embraced. (Parker v. Parker, 10 Tex. R. 83.) It does not come within the mischiefs which it was the object of this provision of the Constitution to prevent, and it is not, we think, in violation of its letter and spirit.

Various other objections to the right of action and to the petition have been urged by counsel; but one of which, however, it is material to consider, as that will dispose of the case; that is, that the plaintiff is not the party authorized by the statute to institute this proceeding. The provision of the statute is “ That any one interested in the estate of a deceased “ person, may at any time within two years after the settle- “ ment by the Chief Justice of any account of the executor or “ administrator of such estate, have the same revised and corrected,” &c. (Hart. Dig. Art. 1230.)

Does the plaintiff come within the description of persons who are authorized by the statute to institute this proceeding ? Is he, as administrator de bonis non, a person on whom the right of action is conferred by the provision that “ any one “ interested in the estate may have any account of the execu- “ tor or administrator of such estate,” which has been allowed by the Chief Justice, revised and corrected? We think not. It is the allowance of the account of the administrator, which any one interested in the estate, and, of course, some one other than such administrator, is authorized to have revised and corrected. It is evident from the phraseology of the statute, that it was not intended to provide a remedy for the administrator de bonis non. The remedy given may be pursued as well while the administrator remains in the discharge of the functions of his office, as after it is determined. It is not the final account only, but any account of the administrator, which any one interested in the estate may have revised and corrected. It is a remedy given against, not by an administrator. The statute has no reference to a proceeding by an executor or administrator; but was evidently intended for the benefit of those interested in the estate as creditors, legatees or distributees. The administrator de bonis non could have no interest in the settlement of an account of the former administrator. “His duty only extends to effects left unadministered, and his interest is in them alone.” (1 How. (Miss.) R. 92.) He is a mere trustee, is chargeable only in so far as he receives assets, and has no such interest in the estate as will enable him to maintain an action against the former administrator for maladministration; or as will authorize him to prosecute an appeal, or other proceeding to have the acts of the former administrator revised and corrected. A previous Section of the statute had made provision for suits by the administrator de bonis non against the former administrator; and the cases there provided for are the only cases in which such action can be maintained. (Hart. Dig. Art. 1224.)

The Court did not err in sustaining the demurrer, and the judgment is affirmed.

Judgment affirmed.