11 Tex. 32 | Tex. | 1853
Proceedings, in this case, were commenced in the Probate Court, by the appellant, on a petition to be appointed administrator de bonis non, on the estate of John H. Whitehurst. The petition sets out that in 1838, a judgment was obtained in the County Court of San Augustine county, against the said Whitehurst and one Ford, in favor of Eubanks and White, assigned to Eubanks; that Whitehurst died in 1840 ; and that his widow and John Brown obtained letters of administration, in April of that year, on his estate ; that the judgment was presented to, and accepted by the said Brown in December of the same year, as a just claim against the estate; but it is not alleged that the claim was presented .
The appellant demurred to the opposition, and assigned several special grounds for the demurrer. We, however, do not regard any of them worthy of consideration, but first: The failure of the oppositionists to show any interest in the matter, or to show that they were the executors of Hudson. And, secondly, That their opposition, or intervention, could not be received by the Court, because they neither asked the administration for themselves or claimed that it should be committed to any other person.
The demurrer was sustained, and the order made as prayed, for letters of administration ; and it may therefore be answered to the first objection, that the parties were cut off from proving their interest, by the demurrer, as it is a legal conclusion, that, inthe judgment of the Court, the opposition, admitting it to be true as stated, afforded no sufficient ground for rejecting the prayer of the petitioner for letters of administration.
In support of the second ground of demurrer, the appellant in this Court refers to the Act of the Legislature. (Hart. Dig. Art. 1126.) It is true, that, under this provision, if there was no contest about the vacancy of the succession, there could be no opposition to the grant of the administration, without showing that some one else had superior claim to it, to the claim of the petitioner; but we apprehend that it is different, where the opposition is to any administration being granted at all. In such case, it would seem that any person interested might be heard to make opposition.
We do not propose to consider the various grounds taken in opposition to the grant of the letters of administration. If true, they afford abundant grounds to support the judgment of the District Court in reversing the judgment of the Probate Court. We will notice objections presented by the petition itself, on its face.
In the first place, it may be objected to it, that it does not show any outstanding, subsisting debt against the estate. It does not show that the claim had been presented to the Probate Judge, to be ranked with the acknowledged debts of the estate. It presents a claim that (whether it be regarded as a judgment, or not) was barred by the statute of limitations, more than two years before the filing of the petition for letters of administration ; and it has been the acknowledged doctrine of this Court, that the property of an estate passes to the heir, incumbered with the payment of debts. If then, the claim set up was barred by the statute of limitations, it was no longer a subsisting debt, nor incumbrance on the right of the heir, and no legal reason existed for an administrator de bonis non. The petition shows that an administration had been granted on the estate of the deceased, twelve years before application was made for letters in this case, when the laws governing the first administration required that it should be closed within one year, unless the Court, for good cause shown, should extend the time; and it is not shown that the time was extended.— The conclusion, therefore, is that it had been long since closed, and the legal presumption is, that all the debts against it had been discharged and satisfied. (Boyle v. Forbes, 9 Tex. R. 35 ; Blair v. Cisneros, 10 Id. 34.) The presumption of pay
If the claim, in point of fact, has never been paid, the party-may justly ascribe his loss to his own negligence. If he presented it to the Judge to be ranked with the acknowledged debts of the estate, he could long ago have had it paid, either by the administrator, or he could have procured an order of sale of the property of the estate for its satisfaction, if not paid by the administrator. After such a lapse of time, the probability is, that the property has been divided with the heirs, and may be alienated to innocent purchasers; and if such claims, so long permitted to sleep, could receive judicial countenance, there is no foreseeing the extent of the injury, that would follow. We are of opinion that such stale demands cannot be made the ground for re-opening an estate by granting letters of administration. Whenever a case is presented, showing a legal reason for such delay, we will know how to make the exception to the general rule, based upon presumption. The judgment of the District Court is affirmed.
Judgment affirmed.