Henderson v. Ayres , 23 Tex. 96 ( 1859 )

Wheeler, C. J.

The claim of Isaac Stewart, was founded on the covenants in the deed of trust, or mortgage, of the 3d of July, 1841. These related to acts thereafter to be performed, before any right of action would accrue upon them. No time for performance was specified, and there is nothing in the evidence, to show within what time they ought reasonably to have been performed, and when, therefore, the right of action did accrue to the claimant. It is alleged, that English left the country in 1844, and that he never returned. If a right of action had then accrued, .it was suspended by the absence of English from the country, until his death, and it does not appear at what time that event took place. (Ayres v. Henderson, 9 Texas Rep. 539; Teal v. Ayres, Id. 588.) It, therefore, does not appear, that the claim was barred at the time of the presentation and allowance by the administrator. It devolved, on the plaintiff to show that the claim was barred, if he would have the allowance and approval of it set aside on that ground.

The evidence relied on, to prove that the claim had been satisfied by English in his lifetime, was too uncertain and inconclusive to require the court to set aside the allowance of it by the administrator, on that ground. These are the grounds which appear to have been relied on upon the trial; and upon neither, do we think there was error in the judgment of the court.

But our attention is now called to another ground, on which, it is insisted, the allowance by the administrator was unauthorized by law, and is void. It is, that the defendants, in their answer, do not deny that Ayres was the agent of Stewart, for the collection of his claim against the estate of English, having a contingent interest therein, as alleged in the petition; and being thus the holder, and having an interest in the claim, it is insisted that, as administrator, he could not lawfully allow the claim.

The provision of the law to which we are referred, is the 133d section of the act relating to the estates of deceased persons, (Art. 1242, of the Digest,) which declares, that “the provisions of this act respecting the presentation of claims, shall not be construed to apply to any claim of an executor or administrator against his testator, or intestate, that has not been allowed by some previous executor or administrator of the same estate;” and provides the mode for the establishment of such claims, by the judgment of the chief justice.

From this provision of the statute, it is clear, that an administrator has no authority to allow claims which he holds against the estate; and that such claims can only be approved or established in the mode therein provided. If, therefore, Stewart had himself administered, as he might well have done, he could not have allowed the claim in question, but must have pursued the prescribed mode for its establishment. Could his attorney in fact, appointed to represent him in the collection of the claim, and beneficially interested in its collection, administer, and allow the claim, and thus bind the estate, and it may be, give precedence to the claim, over the claims of other creditors ? It is not easy to perceive how the principal can confer authority on his attorney to do for him an act, which he could not himself perform in person; or how the attorney, representing his principal, can perform an act for the principal, which the latter, standing in his place, could not himself perform. To the extent of the attorney’s interest, he is the holder of the claim in his own right, and to that extent, it is clear, he had no authority to allow the claim. The law does not allow him to be a judge in his own case. His allowance is, in so far, unauthorized and void. The extent of his interest does not appear. But, I apprehend, his allowance of the claim, as agent for his principal, was equally forbidden by the spirit, if not the letter, of the provision. In the allowance of the claim, he acted in the double capacity of the representative of his principal, and the estate of his intestate. In the former capacity, he represented an interest adverse to the estate and to other creditors, the estate being insolvent. The trust reposed by the law in the administrator, required him to act impartially, as the representative of heirs and distributees, and all the creditors alike. But the interest which he represented as agent, was adverse to his thus - acting. It presented a motive, the estate being insolvent, to disallow and defeat, if he could, the claims of other creditors, in order to subserve the interests of his principal, and apply the assets to the claim in which he was personally interested; as it is alleged he has done, and is seeking to do. In forbidding the administrator to allow his own claim, the law intends to remove all motive to his acting thus unjustly in his office, to the hindrance and prejudice of the just rights of others. But if he were allowed to act officially in the allowance of the claim of a particular creditor, being agent and interested in the collection of the claim, he would have the strong motive of interest, to abuse the trust reposed in him by the law, to the injury of those for whose benefit the trust was conferred. Such an agency is incompatible with the trust reposed in the administrator, in passing upon claims against the estate he represents. Holding such an agency, it was his duty to proceed for the establishment of the claim in the mode provided for the administrator, who is the holder of claims against the estate of his intestate. He had no authority to allow the claim; and his allowance of it ought, therefore, to be set aside, and held for nought.

This opinion will require that the judgment be reversed. And the jury having been discharged, we might proceed to render judgment. But this ground was not suggested when the case was first argued in this court. It evidently was not a ground relied on below. It does not appear then to have occurred to the plaintiff’s counsel, that the defendants had failed to answer so material an allegation of the petition, and that, consequently, under our practice, it was to be taken as admitted. The attention of the court does not appear to have been called to it, or the decision would doubtless have been different, unless the defendants had been able to obviate its effect. And as it is possible they might have done so, and ought, at least, to have the opportunity afforded them, to that end, the cause will be remanded for a new trial.

Reversed and remanded.