Debrell v. Ponton , 22 Tex. 686 ( 1859 )

Roberts, J.

The note sued on being executed by Bellows and wife, and she having died, was acknowledged by the administrator of her estate, and approved by the chief justice, and became a recognized claim against her estate. The estate having been closed, without this debt being paid, the plaintiff seeks by this action to follow the effects into the hands of the guardian of her heirs. Eor the purpose of establishing that she had not received her portion of her deceased son’s estate, the plaintiff proposed to prove the value of the lands and negroes, which are in the possession of said guardian, and which is the same property mentioned in the final settlement of the estate of Andrew Ponton, deceased, made- by Bellows and wife, as administrator and administratrix. One of the minor heirs of said Andrew died before this final settlement, and before the death of Mrs. Bellows, his mother. The portion of this deceased minor, to half of which she was entitled, was not separated and set apart from the balance of Andrew Ponton’s estate, either before or at the time of this final settlement. This evidence as to the value of the lands, &c., was excluded by the court. The only ground upon which this evidence was regarded' as immaterial, was, that there had been a partition after the final settlement, by which Mrs. Bellows’s interest in the estates of her former husband and deceased son, was fully awarded and set off to her. And whether or not there is such a partition, is the main question in the case.

It is shown by the transcript from the County Court, that there is a paper, found among the papers of Andrew Ponton’s estate, purporting to be made out, approved and signed by the chief justice of the County Court, and by him therein ordered to be spread upon the minutes. It is headed, “statement of distribution of the estate of Andrew Ponton, deceased, between “the widow and the now surviving children, as follows,” &c. By this, allowances in money were made to Mrs. Bellows, for her interest in the estates of her husband and deceased son, to an amount about sufficient to cover the balance of money shown by the final settlement to be in the hands of Bellows and wife,, as administrator and administratrix of Andrew Ponton’s estate-

We do not think that this instrument concluded the parties,, because it was not entered upon the minutes of the court as an order, judgment, or decree of the court. (Hart. Dig. Art. 1231.) It is not, therefore, entitled to the presumptions in favor' of its validity, that might be indulged for an' order regularly entered upon the records. It does not appear that any one but the chief justice had anything to do with this “statement of distribution.” There was no petition filed, asking a distribution ; no parties were cited or appeared in the proceeding; no guardians were appointed to represent the minor heirs; no commissioners were appointed to value and divide the property; there was no adjudication, as to who.were the parties entitled to distributive shares of the estate; and indeed, no steps were taken, in accordance with the statute, to make a valid binding distribution. (Hart. Dig. Art. 1198, 1199, 1205, 1206, 1209, 1215.)

Whether or not, then, Mrs. Bellows’s share of the estate amounted to more than the money in her and her husband’s hands, as shown by the final settlement, depended upon the value of the lands and slaves that remained on hand, undisposed. of, and which have gone into the possession of the guardian, in right of the surviving heirs. Their value was, therefore, a legitimate subject of inquiry, on the trial, if such a suit can be maintained by a creditor, whose debt has been recognized and established as a valid claim, and has not been paid.

We see no reason to question the ruling of the court below sustaining the petition, seeking to follow this property, and subject it to the payment of this debt, in the hands of the guardians of the heirs. Other points in the case need not be noticed. As the court erred in .excluding the said evidence, the judgment will be reversed, and the cause remanded.

Reversed and remanded.