Cochran v. Thompson , 18 Tex. 652 ( 1857 )

Hemphill, Ch. J.

On a previous trial in this cause, there was verdict for defendants below, viz : Jacob Shannon and the administrators of Cochrane. The plaintiff, viz: Thompson, appealed, and the judgment being reversed, anew trial has been had and judgment has been given for the plaintiff. The adm’r. and adm’x. of Cochrane have brought up the cause. There is no statement of facts, but it is assigned that there was error in overruling the demurrer to the petition, and refusing, on the second trial, to rehear argument on the demurrer, and to sustain the same.

The argument of the plaintiffs in error involves two propositions, viz : that the grant of administration was void, fourteen years having elapsed from the death of the intestate before this grant of administration de bonis non to Thompson, the defendant in error, and

2d. That, as administrator de bonis non, he had no authority to bring the suit.

Upon the first ground, it may be remarked, that an objection of this character, to the validity of the grant, should be taken by plea, or at least by special demurrer.

As a general rule, grants of administration after so great a lapse of time, should be regarded as nullities; but there may be special reasons which would even then support a grant, as for instance to recover a money demand, or claim, of the estate, which had lately fallen due. Under the law as it now exists, it would seem that the heirs, though entitled to the estate, and though it has vested in them by operation of law, yet cannot sue for the recovery of debts, though, perhaps this might be allowed under some circumstances, where much time has elapsed without administration. Had the defendants, on the former appeal, brought up by cross appeal the alleged error in overruling the demurrer, and provided the defect could have been reached by general demurrer, the claim that the grant of administration should be considered a nullity and the suit dismissed, would have been entitled to great weight and consideration.

By the laws of Louisiana, in force as to Probate matters at the death of the intestate, an administrator held his appointment for one year only, except that for good cause shown it might be extended from year to year for five years. The same policy, viz : that of speedy administration, was enjoined under the Probate Law of 1840. Yet we find, notwithstanding these positive injunctions, as many as four administrations on this estate, the last grant being nearly fourteen years after thé death of the deceased. And for whose benefit were all these administrations, with their costs and charges ? Certainly not for the benefit of the heir. It does not appear that there was any other property but this quarter of a league, and that must be nearly, if not entirely, absorbed by the expenses of administration. The appointment of administrator is merely a trust to pay the claims of creditors, and then to restore the remainder of the assets to the heirs.

If there ever were any debts against the estate, they must have been discharged or barred years before the latter grant. The petition alleges, in substance, that when Cochrane,"the former administrator, obtained the order, in 1845, to sell the land, there was not a shadow of a claim against the estate. Of course when administration was granted the plaintiff six years afterwards, there could have been no claim.

The only pretence, then, for the last grant was to bring this suit for the recovery of the land. But there was no necessity for this; the heir could have brought the suit in his own name, without incurring the charges of administration. In most of the other States administration does not extend to the real property. This vests immediately in the heir, with power to maintain suits for recovery or defence, and it ought not to remain under administration in this State any longer than may be necessary for the discharge of the debts speedily and advantageously for the estate.

But this ground should have been assumed when the cause was before the Court on the former appeal. It might have been brought up then by the present plaintiff in error on cross-appeal, and it is too late, after the years through which this litigation has been protracted, to take it now for the first time.

The second ground, viz : that the plaintiff has no authority as administrator de bonis non to bring this suit, would have been conclusive, if the sale of the land by Cochran, the former administrator, was an act done in due course of administration. The power of an administrator de bonis non extends only to property which has not been administered. That which has been adminstered does not come within the scope of his grant. But the petition charges, in substance, that the land was fraudulently sold by Cochran, the former administrator, for his own use, in collusion with Shannon, the vendee. If so,—and, on demurrer, it must be taken as true,—the land, in consideration of equity, remained unadministered. As such, it passed to the plaintiff as administrator de bonis non, and he had authority to bring this suit to set the sale aside. (1 Williams on Ex’ors. 783; 2 Id. 799.)

Judgment affirmed.