Harris v. Graves , 26 Tex. 577 ( 1863 )

Bell, J.

We are of opinion that there is error in the judgment of the court below, for which it must be reversed. The court below instructed the jury as follows: “If you believe from the evidence that Rutledge acted at the request of Harris’ father in becoming administrator, then it was not necessary to have the written consent of the other heirs in order to make a sale,” &e. The administration of the estate of Jesse Harris was granted to Rutledge in 1837, therefore the 1st section of the Act of January 14th, 1841, (Hartley’s Dig., art. 1058,) has no application to this case. But the second section of said Act (Hartley’s Dig., art. 1054) is undoubtedly applicable to the facts of this case, as they are disclosed in the record. The second section of the Act is as follows: “That where administration has heretofore been granted on the estates of deceased soldiers, to other than the heirs or next of kin of such soldiers, it shall not be lawful for such administrator to sell the lands of such deceased, without the consent 'or approbation of the heirs of such deceased soldier; the document relied on as evidence of such consent of said heirs, to be recorded by the Probate Judge, he being satisfied of the genuineness of the same, before granting a decree of sale to the administrator.” It appears from the testimony in this case that the father of Jesse Harris survived him. This being so, the father, by the law in force at the time of the death of Jesse Harris, was his heir. The administration, therefore, when granted to Rutledge, who appears to have been the brother-in-law of the deceased, was not granted to the heir or next of kin of the deceased. This being so, the administrator, by the plain terms of the statute, had no power to sell the lands of the deceased, without the consent or approbation of the heirs; and the court had no power to grant a valid decree of sale, unless the document relied on to show the consent or approbation of the heirs, was first recorded by the Probate Judge, he being satisfied of the genuineness of the same. There was, therefore, error in that part of the instruction of the court below to the jury, which has been quoted above. The precise facts of the case are not brought very clearly to light by the evidence, and we therefore deem it unnecessary to say anything upon the question of the right of the plaintiffs to maintain the suit as the heirs of Jesse Harris. It is not shown when the father died—indeed it is not distinctly shown that he is dead.

Because of the error to which we have alluded, the judgment is reversed and the cause remanded.

Reversed and remanded.