Mosely v. Gray , 23 Tex. 496 ( 1859 )

Bell, J.

It has been repeatedly decided by this court, that where an executor, or administrator, allows a claim against the estate which he represents, from mistake or ignorance of the facts, which constitute its invalidity, or from fraudulent representations, on the part of the holder of such claim, such executor, or administrator, may sue in the District Court, and have the allowance of such invalid claim annulled. (Neill v. Hodge, 5 Texas Rep. 487 ; Jones v. Underwood, 11 Id. 116, and other cases.) But in all such cases, the burden of proof, to show that the claim was not a valid and subsisting claim against the estate of his testator, or intestate, is upon the executor, or administrator. (Eccles v. Daniels, 16 Id. 136; Hillebrant v. Burton, 17 Id. 138.)

In the case of Eccles v. Daniels, which was a case in which an administrator sought to have the allowance of a claim against the estate of his intestate annulled, on the ground that the claim was barred by limitation, at the time it was allowed, this court said, “ It devolves upon the administrator, to show beyond question that the claim had been barred. The mere fact that the claim, on its face, appears to be barred, will not be sufficient.” It was said further, in that case, that the administrator seeking to have the allowance of the claim annulled, should deny by averments in his petition, the existence of any facts or circumstances, which would have taken the claim out of the operation of the statute of limitations, at the time it was allowed. These same views were substantially reiterated, in the case of Hillebrant v. Burton. It may be considered as well settled, by these cases, that it is not sufficient to entitle the administrator, to have the allowance of a claim against the estate of his intestate annulled, that the claim appears on its face to have been barred by the statute of limitation, at the time of its allowance.

As there was no evidence in this case, beyond the note itself, with the endorsements on it, it was not error for the presiding judge to charge the jury, that they must find for the defendant. It was not a charge upon the weight of the evidence, but upon the competency of the evidence to establish the issue. The judgment of the court below is affirmed.

Judgment affirmed.