32 Tex. 131 | Tex. | 1869
On January 1, 1860, one Ewing executed to plaintiff his promissory note, and afterwards died, leaving the note unpaid, having previously made his will, appointing his surviving wife his executrix, with directions to settle the estate without the intervention of the Probate Court. The widow having probated the will, and returned into court an inventory of the property, married Murphy.
The note being unpaid, and Mrs. Murphy, executrix, refusing to pay it, suit was brought on the note against her as such executrix, as well as her husband in his capacity as such, requesting a judgment against her in her fiduciary capacity.
The County Court, after several rulings and counter rulings, gave judgment, and the defendants appealed to the District Court, which reversed the judgment of the County Court and dismissed the cause. In this condition we find the case as brought here for appeal.
The defendant excepts to the sufficiency of the petition because it does not appear that the husband of Mrs. Murphy has entered into a bond jointly with his wife, as provided in Art. 1281 of the Digest, viz: “ Whenever a married woman may be appointed executrix or administratrix, and shall wish to accept and qualify as such, she may, jointly with her husband, execute such bond as the law requires, and acknowledge the same before the Chief Justice of the court where the will was proved, or letters were granted; and such bond shall bind her
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The defendants rely upon the first part of this article to sustain the exceptions to the petition, and the plaintiff upon the last part to sustain the petition.
The first part provides in what manner a married woman may become an executrix or administratrix. This has no reference to the parties that are not married, and the last part of the article has no reference to what shall be done when an executrix shall be a married woman. In one case the article has reference to the bond to be given, and requires that the husband shall unite with her in the execution of the bond. But if she gave a bond when she was a single woman the bond would be good and valid to bind all her property, and should she, while executrix, marry, no additional bond is required; but she and her husband shall act jointly in all matters pertaining to her said representative capacity.
In the case before the court the woman was already an executrix before she married, and her estate is bound by the bond she gave; and as she and her husband were made joint defendants, the plaintiff did all that he was required to do, and as there was no defense to the note the court should have rendered judgment therein.
Reversed and remanded.