Grant v. McKinney , 36 Tex. 62 ( 1872 )

Walker, J.

John Reily and Robert Hanna, in the lifetime of Hanna, were partners in trade. Hanna dying, Reily was appointed the administrator of the estate. He qualified and gave bond, with George W. Grant, the plaintiff in error, and J. A. Stranahan as his sureties. Reily was subsequently removed from the administration, and McKinney appointed de bonis non. McKinney brought this suit against Reily and his securities on the official bond. At the March term, 1871, judgment was taken against Reily and Stranahan by default. Grant made defense to the action, but there was a verdict and judgment against him for three hundred and fifty-nine dollars and seventy-eight cents, from which judgment he brings the cause to this court on error.

Two causes for reversal are insisted on. 1st. If Reily did convert the assets of Hanna’s estate to his own use, he did it not as administrator, but as surviving partner. 2d. That the judgment of the probate court of Walker county, removing Reily, was a nullity, and consequently the defendant in error could not have been legally appointed administrator de bonis non, and therefore could not maintain this suit.

These errors are not well taken. Reily, as the administrator of Hanna’s estate, and the securities upon his official bond, are liaCble for whatever assets came into his hands, and though he might have applied Hanna’s interest in the partnership property to the payment of partnership debts without becoming liable to the individual creditors of Hanna,.there is no pretense that a necessity for such application existed.

Under the circumstances insisted upon by appellant’s counsel, the judgment of the probate court would have been only voidable, and therefore, standing as it does, unimpeached and unap-' pealed from, we cannot review it here.

The judgment of the District Court is therefore affirmed.

Affirmed.