Blinn v. McDonald ( 1899 )

In preparing the original opinion in this case, as heretofore stated, we overlooked the fact that section 88 had been brought into the Revised Statutes, and hence we expressed no opinion as to its effect. We do not think its presence in our probate law should change our ruling. We do not understand that the question had been directly involved in or decided in any case previous to Webster v. Willis, 56 Tex. 468, and what was there said was in reference to the statute therein referred to, which was wholly different from the one before us, in that it expressly provided for a personal judgment. The subsequent cases of Mayes v. Jones, 62 Tex. 365, and Kauffman v. Wooters, 79 Tex. 205, we understand were governed by the statutes we are construing, and, following Webster v. Willis, they announce a different rule from that announced by us in the former opinion herein. We think they do not properly construe the statute, and that they are at variance with the principle of the cases of French v. Grenet, 57 Tex. 273; Northcraft v. Oliver, 74 Tex. 162; and Moore v. Moore,89 Tex. 29, holding that under the statute the debts of the ancestor are a lien upon the property in the hands of the heir. In Ansley v. Baker, 14 Tex. 612, Hemphill, C. J., referring to the statute we are construing, said: "But apart from these considerations, it is extremely doubtful whether the mere fact of taking possession of an estate by an heir would under our statute be permitted to convert him into an executor de son tort, and subject him to liabilities as such. The statute declares, in effect, that the estate shall immediately on the death vest in the heirs, testate or intestate, as the case may be.. To take possession of property vested by operation of law can not be unlawful, nor can it create liabilities not specially attached to the act by law. At common law, the estate in the personal goods was in abeyance until the grant of administration, but by the statute the whole estate vests immediately in the heirs, subject to the payment of debts as declared by statute. But it is not provided that the heirs as such can be compelled to discharge those debts, nor are they authorized to employ the estate for such purpose; the statute in the same connection declaring that the administrator shall have a right to the possession of the estate as it existed at the death of the deceased, though if debts were fairly paid allowance would no doubt be made for such payments. Hart. Dig., art. 1221. Possession, then, by an heir does not subject him to liability. He holds the property with the incumbrance, but be can not be required to relieve the estate of the burden." In McCampbell v. Henderson, 50 Tex. 601 [50 Tex. 601], the judgment of the trial court ordered the land inherited sold to pay the ancestor's debt. The reversal was upon a question of evidence not relating to the point before us, and we do not think the case is authority here. Low v. Felton seems to have been controlled by the same statute as Webster v. Willis, supra.

The motion will be overruled.

Motion overruled.

BROWN, Associate Justice, not sitting.

Delivered April 29, 1899.

MAY, 1899.