13 Tex. 5 | Tex. | 1854
The only question in this case is, on the right of the administrator of Mitchison to impeach the deed pro
In the case of Dancy and others v. Smith and others, (6 Tex. R. 411,) a strong intimation, as an obiter, was thrown out, that an administrator could do so for the benefit of creditors ; it was a question not presented by the case, and subsequent reflection satisfied us that it was erroneous, and that the fraud of the intestate could not be set up by his administrator j and we so ruled on mature consideration, in the case of Cobb, Adm'r, v. Norwood, Adm’x, and others; (11 Tex. R. 556;) and again in the case of Avery v. Avery, decided at Tyler, last Term. The question must therefore be regarded as settled in this Court.
In this case, the administrator was allowed by the Court below, to impeach a deed procured by his intestate to be made, conveying a negro woman to his minor children; the administrator alleging that his intestate had so procured the deed to be made with the intent to defraud his creditors. This could dnly be done by a creditor, by a direct proceeding for that purpose, and not through the agency of the administrator.'—■ The administrator cannot be permitted to do what his intestate could not have done himself; and he could never have impeached the right of the children, on the ground of his own fraud. The judgment is reversed and the cause remanded. .
Reversed and remanded.
