Brown v. Franklin

44 Tex. 559 | Tex. | 1876

Moore, Associate Justice.

This is a suit by Joseph . Franklin, the appellee, as administrator de bonis non of the estate of Fredrica Pfleger, deceased, against John Brown, the former administrator of said estate, and Henry Ruenbuhl, a son and one of the heirs of said Fredrica Pfleger. Its object is to annul and set aside the allowance by the administrator, and approval of the Probate Oourt of the claim of said Ruenbuhl against said estate, and also to cancel and annul an order of sale and the sale thereunder of a lot in the city of Galveston, belonging to said estate and purchased by said Ruenbuhl, on the ground of combination, collusion, and fraud between said Brown and Ruenbuhl in the approval and allowance of said claim and in making said sale and procuring its confirmation. And in an amended petition the plaintiff also claims the rent of said lot since its sale, and asks judgment against him for all money and effects in his hands belonging to said estate.

The defendants, Brown and Ruenbuhl, after excepting generally and specially, answered all the matters alleged against them by the plaintiff. And afterwards, Brown having died, Wm. H. Brown, his administrator, was made a party defendant, who appeared, and also filed a number of exceptions to the petition and amended petition, all of which, as well as those made by his intestate and the defendant Ruenbuhl, being overruled, there was a verdict and judgment in favor of the plaintiff, canceling the allowance and approval of the claim of the defendant Ruenbuhl, declaring the sale of the lot null and void, and reinvesting the title in the estate, and for the recovery from defendants of the sum of twenty-one hundred and forty dollars for rent and other small accounts, which were afterwards remitted.

As no statement of facts is brought up with the record, it must be presumed that everything was proved which was susceptible of proof under the pleadings. And every presumption is to be indulged in favor of the verdict which the pleadings will justify. But though this is done, it is nevertheless quite obvious that the judgment is erroneous, The petition shows no right of action in the plaintiff against the defendants, and the exceptions should have been sustained. It is well settled by the former decisions of .this court that the administrator de bonis non cannot maintain such a suit as this. In the case of Murphey v. Menard, (11 Tex., 673,) the court say, “That an administrator de bonis non cannot, either under the law governing estates or on general principles, maintain an action in the District Court to review the settlement of the accounts of a former administrator.” Again: “It seems that the only action which an administrator de bonis non can have against a former administrator is on the bond, not for maladministration or devastavit, but to recover any amount that is shown to be due by the settlement by such former administrator’s final account.” (See also Johnson v. Hogan, 37 Tex., 80.)

There is no necessity shown for such a suit as this being prosecuted by the administrator de bonis non, or indeed for the appointment of such administrator. From the inventory attached to one of the amended petitions, it is evident that the object of plaintiff’s appointment was merely to bring this suit. It seems quite probable that there are no claims or debts against the estate, except the cost incurred in this proceeding, if the claim of the defendant Ruenbuhl is disallowed. The other distributees, who are not before the court, and the defendant Ruenbuhl, are the only persons who seem to be interested in the estate and its proper settlement. If any sufficient cause for annulling the orders and decrees of the Probate Court complained of exist, this might be done by distributees, or creditors, if any, if it had been attempted at the proper time and in the proper manner. (Paschal’s Dig., art. 1382.) Or, if the title of Ruenbnhl can he impeached collaterally, while the order confirming the sale and directing a title to be made him remains nnrevoked, his co-distributees may sue him for their interest in the lot. It cannot be said that the plaintiff shows the sale of the lot to be void, in that absolute sense that he may sue for and recover it from the parties holding and claiming under the orders of the Probate Court, while they are in force and neither reversed nor overruled. And if not, his action is dependent upon his right to review the action of the court and of his predecessor in the administration of the estate, which, we have seen, he cannot do. But if the sale is void, and he could sue for and recover the land without a review and reversal of the previous orders of the Probate Court, it would be sufficient to say that this is not such a suit. The former administrator would be an unnecessary party, if this was the character of the action. Nor is such a view of the case consistent with the prayer for judgment for the amount due the estate by the former administrator on settlement of his accounts.

The judgment is reversed and the cause remanded.

Reversed and remanded.