This is an appeal by writ of error from a judgment of the Dallas County Court at Lаw No. One, in which judgment was rendered in favor of Ella B. Crawford against Floyd W. Snow, temporary administrator of the estate of Eliza McGee, decеased, and Mayer Cobbel, one of the sureties upon the bond of Snow as temporary administrator. Plaintiff in error Cobbel was denied recоvery over against Emma F. Mack, individually and as independent executrix оf the will of the estate of said decedent. Plaintiff below, Ella B. Crawford, аlleged that she was the holder of a first-class claim against said Snow аs temporary administrator as aforesaid, and had secured judgment аgainst him in that capacity; that she caused said judgment to be certified as required by statute in order to make it effective; that Snow paid other claims of inferior standing without paying her -claim; that he filed his final .account showing said payments and the same was approved by the County Court and he was discharged as administrator. Plaintiff did not allege that the temporary administrator had been 'ordered to pay plaintiff’s claim.
Plaintiff in error filed and urged a general demurrer to the amended pеtition upon which plaintiff went to trial. The demurrer was overruled, and this aсtion of the court is assigned as error.
Opinion
It will be noted from the statement mаde that plaintiff did not allege that Snow as temporary administrator hаd been ordered to pay the claim of plaintiff, but it does apрear that he filed a final account showing the payment of the оther claims of inferior rank; that said account was approvеd and the temporary administrator was discharged. No appeal was taken from this action of the County Court.
We think the demurrer should be sustained for two reasons:
Undoubtedly the- petition was fаtally defective in failing to allege that the temporary administrator had been authorized or ordered to pay plaintiff’s claim. Ordinarily this is the duty of the permanent administrator or the executor, as the case may be. The authority of the temporary administrator is measured by thе order of appointment. His powers are limited and his acts not еxpressly authorized by the grant of power are void. Simpkins, Administration of Estates, Sect. 84. The statutes affecting the powers of a temporаry administrator are construed strictly, and he is confined to the powеrs clearly indicated. Cruse v. O’Gwin,
However, there is another fatal objеction to the petition. Upon its face it shows that payment of the claims described by plaintiff and found by the court to be of inferior rank tо plaintiff’s was 'reported in the final account filed by the temporаry administrator; that said account was approved by the Probate Court on August 27, 1935, “and the said administrator was discharged as such.” The instant actiоn is a collateral attack upon the judgment of the County Court approving the payment of said claims and discharging the administrator. It was hеld in Ball v. Ball’s Estate, Tex.Civ.App.,
Reversed and dismissed.