35 Tex. 565 | Tex. | 1872
Mrs. J. L. Buckley was the wife of Judge C. W. Buckley. On the twenty-ninth day of March, 1851, she made and published her last will and testament. This will appears to have been admitted to probate in the county court of Harris county ; but at what time, the certificate of the clerk does not inform us.
The petition states that Mrs. Buckley departed this life on the sixteenth day of September, 1851; which fact does not appear to be disputed. There are singular inaccuracies in this record; the will is sometimes referred to as the will of Jane L. Buckley, and at other times as that of L. J. Buckley. But no question is raised as to the authenticity of the will, or its validity as a testament.
Among other provisions, Mrs. Buckley bequeathed to her children therein named certain slaves, which were her private property. In a subsequent article of the will the following language occurs:
“ It is my will and desire that the property herein bequeathed to my children shall be kept together and prudently managed by my said husband.”
This language refers to the slaves already devised to the children of the testatrix. We are asked to determine what obligation this language imposed on the-surviving husband, who was made the testamentary guardian of the legatees, who were Ms own children; and we are unable to discover wherein the obligation.
The law, in all cases of this character, imposes prudent management; and for this legal prudence (for the law determines the degree of prudence), the guardian must sooner or later account to his ward.
The administrator of 0. W. Buckley’s estate opposes this action on two grounds ; the first, that there is no liability arising out of the relation of C. W. Buckley and his children (the legatees); and secondly, that whatever liability might have arisen was fully discharged and settled by the conveyance of thirteen hundred acres of land, conveyed by C. W. Buckley to his son, F. Z. Buckley, by deed dated October 21, 1865. The consideration for this land is stated at thirteen thousand ■dollars, in the deed. It is contended on the argument that the lands conveyed were really worth a much larger sum, but we have no evidence, if indeed evidence could have been admitted for that purpose, to impeach the ■consideration named in the deed.
We are disposed, without intending that the question which here arises shall control the decision of the case, to suggest that we are unable to discover any authority whatever on the part of F. Z. Buckley to compromise the rights of his co-legatees (brother and sister) by taking lands in settlement of their claims against their guardian.
But his honor the district judge, whose judgment we are asked by the appellees to affirm, does not appear to have given any significance to this question. But, in the light we find ourselves compelled to view it, we do not consider the right of the appellees as precluded by any settlement made between their guardian and co-legatee.
There may be an equity, however, arising here,
But we believe it is not pretended that there has ever been an express ratification, and certainly the law imposed no obligation upon her to ratify the act of her father and brother.
But the district court appears to have considered that the account of $17,606 should be offset, pro tanto, by the consideration named in the deed; and this theory of the case is acquiesced in by the able counsel of the appellees.
It was impossible for the district judge, and would be alike so for us, to do more than approximate the actual sum due from the estate of C. W. Buckley to the appellees. We can find no fault with the judgment of the district court in its estimate of the amount due in 1865, the time to which all the evidence is directed. But the question arises, why should his honor the district judge decline to allow interest on the $4560, found by him to be due to the children of C. W. Buckley at the time of his death % For it will not do to say that it was the intention of the judge to consider this as the amount due at the rendition of the judgment ; for he establishes this as a preferred claim, presented within twelve months of the grant of letters of administration.
We are led to consider, by remarks of counsel, that his honor the district judge declined to allow interest
We cannot adopt this view of the matter. C. W. Buckley, as the father and natural guardian, was bound by the obligations, both of law and morality, to-raise and educate his children at his own expense, and the law gave no right to him to deduct from, or cut down, the legacy which they received from their mother, for this purpose.
Had the children been thoroughly and expensively educated, and the father poor and unable to provide for their education, both law and equity might then have taken a different view of this subject; but the evidence shows clearly want of care and diligence, indeed negligence, on the part of 0. W. Buckley in the education of his children.
The appellant’s counsel urge that there was error in the court in allowing the judgment to stand as a preferred claim against the estate of 0. W. Buckley. If it be true, that the claim was not presented within twelve months, it was incumbent on the appellant to make that fact apparent to the court. It was the affirmative of an issue presented to the court on his pleading. The claim shows, and it is averred in the petition, that it was presented to the administrator, Kendall, on the sixth of March, 1867, and by him rejected. This date was fixed by the pleadings, and it would have been an easy matter for the administrator to have established the fact when his letters were granted, without going out of the court house. But this was matter of record, and must be presumed to be within the knowledge of the court; in fact, it was part. and parcel of the very case under consideration, and we cannot presume that the court would have committed a blunder of this kind with its own records in plain view. But it is difficult
As a matter of practice, this question is too well settled to require comment. (Allen v. Traylor, 31 Texas, 124.)
We are of opinion that this judgment should be reformed and rendered for the principal of $4,560, with interest at the rate of eight per cent, per annum from the date of presentation, to be computed by the clerk of this court.
Reformed and rendered.
