Montgomery v. Nash , 23 Tex. 157 ( 1859 )

Roberts, J.

The main facts, involving the right of defendants in error to sue, and liability of the plaintiffs to be sued, are similar, in this case, to those in the case of Montgomery and wife v. Culton, just decided, (supra, p. 156;) and the rules of law, applicable thereto, xvere discussed and settled in the latter case, when previously in this court. (Montgomery v. Culton, 18 Texas Rep. 747. See also Davenport v. Lawrence, 19 Id. 317 ; and Jones v. Lewis, 11 Id. 359.)

Under the plea, that the account had been fraudulently allowed by the executor, and was not a just debt against the estate of Stockton, the court below properly and sufficiently instructed the jury as to the lax . The executor, Terrell, who allowed the account, was examined as a witness, and, as we think, satisfactorily explained the matters in the account, which were objected to, so as to authorize the verdict which was rendered in favor of the plaintiffs below. His explanation shows that the debts paid by the plaintiffs below, were really the debts of the estate, whatever may have been the form, in which they appear to have been paid; and that the estate has not accounted either to him or to Nash, Barstow & Co., for these amounts.

Judgment affirmed.