51 Tex. 27 | Tex. | 1879
This suit was instituted April 9;. 1877, in the District Court of Polk county, by Singleton Campbell, administrator de bonis non of Hathaniel Bailey, deceased, against J. PI. Shotwell, executor of W. H. Shotwell, deceased,, to cancel, annul, and set aside the approval by said court as-
It is alleged by appellant in his petition, and shown by the evidence, that Bailey died in the year 1874, leaving a last will, in which appellee’s testator, W. H. Shotwell, and A. T. Watts were named as his executors; that said will was admitted to probate by the District Court of Polk county at its October Term, 1874; and thereupon, said Watts having renounced said trust, said W. H. Shotwell, on giving bond and taking the oath required by law, received letters testamentary, in pursuance of the provisions of said will.
On the 10th of May, 1875, the executor (W. II. Shotwell) made affidavit before the clerk of the District Court of Polk county, to the effect that said note — the same described in appellant’s petition—was just; that nothing had been paid towards the satisfaction thereof except the sum of $22.35 entered as a credit thereon; that there were no counterclaims known to affiant, and that the amount claimed was justly due the affiant, as guardian of Frank Harrell. It further appears that, on the 19th of June, 1875, said note and affidavit were presented to the District Court for its approval as a valid claim against the estate of Bailey, and that said 'note was thereupon approved by the court, and ordered to be'1 paid in due course of administration as a claim of the sixth class.
It is apparent from the above statement that the note had been due more than four years prior to Bailey’s death; and this seems to be the sole ground of objection now urged against its validity by appellant as a claim against said estate, and the ground upon which he seeks to have its allowance and approval set aside and annulled. But the mere fact that
But even if it was admitted that the doctrine asserted by appellant is, as a general rule, correct, the facts in this case would beyond doubt require that it should be held to be an exception to the rule, or to show that this rule invoked by appellant has no application to the case. That this is so, we think, is a necessary deduction from Bailey’s will, which we here quote:
“I direct my executors, hereinafter named, to pay off and discharge all my lawful and just debts as soon after my death as practicable; directing my said executors to require all claims against my estate to be supported by affidavit, and to disregard the statute of limitations as to the principal, but not as to the interest upon such indebtedness.”
blow, it may be admitted to be true that this language is not equivalent to that required in the statute to take a debt, upon which an action is brought, out of the bar of the statute ; but that is not the question before us. We are not called upon to decide whether such a declaration as this can be regarded as a new promise which will take a cause out of the bar of the statute, or would support an action if suit had been brought against Bailey in his lifetime on the note here in question. Admit that it would not; still the question recurs, Was it not admissible for the testator" to empower his executors to pay debts against him although barred, without taking them out of the bar by a new promise within the terms of the statute ? There can, we think, be no question but that it is. A debtor may avail himself of the statute of limitations or not, as his sense of right dictates; and certainly he may, if he sees proper, direct his executor, to whose discretion he has—
The cardinal principle in the construction of wills, beyond question, is to ascertain the intention of the testator, and give to them such construction, if it may be done, as will effectuate this intention. The intention here is obvious. It was clearly the wish of the testator that his executors should require that the verity and justness of all claims against his estate should be established by the affidavit of the claimant, or other competent party, before their allowance. When thus established, if the executor had no sufficient reason to doubt the genuineness of a claim or to suppose that it had been discharged, he should, although it was barred by limitations, pay the principal of the debt, but not the interest. Certainly it would be necessary to show that there had been a clear and palpable abuse of the discretion intrusted to the executor, and an improper approval of the claim by the court, to call for the interference of the court or warrant its cancelling such allowance and approval,—if, indeed, the court had authority to approve or disapprove the recognition and allowance of a claim by an executor authorized to settle an estate without the supervision and control of the court, as was the fact in regard to this estate. But as no question of this sort has been raised or suggested by the parties, we are not called upon to consider it. If the court had no jurisdiction or control over the estate while in the hands of the executor under the will, and the approval of the claim sought to be set aside by appellant should be held to be of no force or effect, no injury has resulted to the estate from the judgment appealed from. On the other hand, if the action of the court approving the claim entitles it to be ranked as a valid claim against the estate, appellant has failed to show that the court erred in refusing to cancel and annul its approval.
There is, therefore, no error in the judgment of which appellant can complain, and it must be affirmed.
Aeeirmed.
