Nickelson v. Ingram , 24 Tex. 630 ( 1859 )

Bell, J.

We are of opinion that the cause shown by Mrs. Ingram, in the County Court and in the District Court, was sufficient to authorize the grant of letters of administration upon the estate of Julia A. Nickelson, deceased.

The suit which Mrs. Ingram and her husband instituted in the District Court, against John L. Nickelson and Clara Margaret Nickelson, went off on demurrer. The effect of the judgment in that suit, was not to declare that the claim sued on was an invalid claim, but merely to declare that the suit could not be maintained in the form in which it was then presented to the court, and against the parties then sued.

But the record discloses an obstacle to the grant of letters of administration to the appellee, which we deem insuperable, although it does not seem to have been noticed in the court below, and is not noticed by the counsel in their briefs. The petition of Mrs. Ingram to the County Court, shows affirmatively, that Mrs. Ingram is a married woman, and that her husband refuses to join in her application for letters of administration. The 24th section of the Act of March 20th, 1848, regulating proceedings in the County Court, pertaining to estates of deceased persons, provides, that when a married woman shall wish to accept and qualify as executrix or administratrix, “she may, jointly with her husband, execute such bond as the law requires;” and that “ whenever an executrix or administratrix may be a married woman, she and her husband shall act jointly in all matters pertaining to her said representative capacity.” We think that this statute imposes upon the husband of a married woman, who may accept and qualify as ^executrix or administratrix, the duty of assuming the representative capacity along with her; because the law would not empower any one to act as administrator of an estate, who had not assumed that capacity, and made himself not only responsible to parties interested, but subject to the authority of the court, in his character of administrator.

Because the record shows that the husband of Mrs. Ingram refused to join in the application for letters of administration, we think the County Court ought not to have granted the letters, and that the District Court erred in affirming the judgment of the County Court; for which error, the judgment of the District Court will be reversed, and the cause dismissed.

Reversed and cause dismissed.