Debrell v. Ponton , 27 Tex. 623 ( 1864 )

Bell, J.

We are of opinion that there is error in the judgment of the court below.

When this case was formerly before this court, it was held that the plaintiffs below showed a good cause of action by their petition. (22 Tex. B., 686.)

On the last trial in the court Below we are of opinion that the court erred in permitting the witness, A. W. Hicks and W. J. Howerton to testify to the conversion of the negro Sam by D. C. Bellows, while he was acting as the administrator of the estate of Andrew Ponton, deceased. The administration of Mr. and Mrs. Bellows upon the estate of Andrew Ponton had been closed before the institution of the present suit. The administrator and the administratrix had filed their final account and made final settlement with the estate and had been discharged. It was not, therefore, competent to go behind their settlement with the estate, and permit them or any others interested in the estate, in a collateral proceeding like the present, to falsify their final settlement for their own advantage or for the advantage of the heirs of the-estate. This testimony was well calculated to influence the minds-of the jury in deciding the question of Mrs. Bellows' interest in the estate, which was the main question of fact before the court.

We are also of opinion that the court below ought to have instructed the jury particularly with reference to the value to be attached to the paper marked B, which was introduced to show a-partition of the estates of Andrew and Virgil Ponton. Although this paper might be entitled to respect as evidencing a partition of the estates in any controversy between the heirs, on the ground of their assent to it and acquiescence in its provisions, it was not such a judicial act as to be conclusive upon the plaintiffs below in a suit like the present. The very object, or one of the objects, of such an arrangement might have been to place the property in the hands of the heirs, and out of the reach of the creditors of Mrs. Bellows. We think, therefore, the jury ought to have been-instructed that the so called partition was in no respect conclusive upon the plaintiffs. So the declarations of Mrs. Bellows, to the effect that she had received all to which she was entitled out of-the estates of her former husband, and her deceased son, although they would be entitled to consideration as against herself, if she were urging a claim against the heirs, ought, perhaps, not to be heard at all, or if heard, ought to be of but little weight, in a suit by her creditor, the object of which is to subject her interest in the estates of her husband and son, now alleged to have passed wrongfully into other hands, to the payment of his debt.

The judgment is reversed and the cause remanded.

Reversed and remanded.