11 Tex. 556 | Tex. | 1854
It appears from the record, that Green and wife, administrators of William J. Norwood, by the decision and determination of a suit in the Court of Chancery of Mississippi, in certain proceedings by bill filed by them against George Norwood, obtained a decree against the said George for two negro slaves, or in default of the slaves being delivered up, with the amount of their hire, for the time they were
The suit is brought upon the decree of the Court of Chancery of the State of Mississippi. The petition alleges the death of William J. Norwood in the State of Mississippi; the appointment of an administration on his estate; that he left one child, Melissa, who was a minor; the proceedings commenced by the administrators against George Norwood to recover two slaves from him, and the final decree of the Court, in favor of the administrators. It alleges that after the commencement of the suit in Mississippi, George Norwood removed to Texas, bringing the two slaves that had been sued for, with him; his death a few months after his removal to Texas. It charges that George Norwood, by several deeds, copies of which are made exhibits, a few days before his death, with an express intention of defrauding his grand-child, Melissa Nor-wood, conveyed all of the slaves in his possession to his chil
The defendants, among other pleas in their answer, plead that the suit was not commenced within three months from the time of its presentation to Aycock, the administrator; and was therefore barred. The case was submitted to the jury ; and the Judge excluded all evidence of the claim from the jury, and a verdict was found for the defendants, and a judgment rendered thereon. A motion for a new trial was overruled, and the plaintiff appealed.
It is presumed from the briefs, that the evidence of the debt was excluded, on the ground that the suit was barred, because it bad not been commenced within three months from the presentation of the claim to Aycock, the first administrator. It is true, that the refusal of an administrator or executor to indorse on a claim, when presented, the refusal or allowance of the same, amounts to a refusal to allow it, and will authorise the commencement of a suit against such administrator; (Art. 1160, 1161, Hart. Dig.) And if the claim, presented, had been so presented by a person authorised to make the oath required by the statute, (see Hansell v. Gregg’s adm’r. 1 Tex. R. 224,) the statute of three months would have commenced running on the day that Aycock, the administrator, refused to indorse allowance or rejection on the claim presented. But Cobb, at that time, made the affidavit and presented the claim, as attorney in fact or agent for foreign administrators ; as such, he had no authority, nor had his constituents authority, to present the demand to an administrator here, because the foreign administrators had no right to collect from an administrator in Texas; and not until there was an administration on the estate of Wm. J. Norwood here, was there
The objections to the evidence were too general. The specific ground of the objection ought to have been pointed out; and if so pointed out, the objection ought to have been overruled. Covert, obscure objections to evidence should receive no countenance. They ought to be sufficiently clear to enable the opposite party to obviate the objection, if.in his power. These remarks apply to whatever objections may possibly have existed, to the manner in which the claim was authenticated when presented, or to the record from Mississippi, when offered in evidence. The record shows us no legal objection to the evidence; and the Court erred in excluding it from the jury-
But if there had been valid objections to the presentation, yet the petition of the plaintiff disclosed sufficent matter to have sustained the suit against the other defendants, if not against the administratrix. The petition, representing a creditor, sought to have cancelled, certain voluntary conveyances, alleged to have been fraudulently made by the intestate; and made the parties, holding under these conveyances, defendants. These conveyances could not be impeached upon the ground of fraud, by any other persons than creditors, or purchasers without notice. In the case of Dancey and others v. Smith and others, 6 Tex. R. 411, I delivered the opinion of the Court; it was a strong case of fraud ; and, deciding that it could only be impeached by creditors or purchasers without notice, I inti
We are of opinion that the Court below erred in sustaining the limitation of three months, and in excluding the evidence of the claim; and the judgment is reversed, and the cause remanded.
Reversed and remanded.