13 Tex. 248 | Tex. | 1855
The first question is as to the alleged error in refusing to amend the fiat, and fix the amount in which the bond should be given. The statute requires the Judge, in the order granting the injunction, to state the
The next question is the alleged error in sustaining the demurrer of defendants, and dismissing the petition. The material facts alleged by plaintiff are, that he had been sued on a note given by him to L. W. Layton and M. B. Bennett, as executors of Peter McDermott, deceased, for the sum of three hundred and ninety-nine 88-100 dollars; that the estate of McDermott was indebted to him on an account for the sum of two hundred and thirty-seven 88-100 dollars, which had been accepted by the executors and allowed and approved by the Chief Justice; that after the commencement of the suit, the said account so probated was delivered to L. W. Layton, one of the executors, who stipulated in writing, that the amount should be credited on the note in suit, and that the suit should be dismissed ; that the plaintiff relying on this agreement made no defence; that his claim was not credited on the note, according to the stipulation, but, in fraud of plaintiff’s rights, judgment was taken for the whole amount; that the attorney of the executors had informed him this judgment was taken subject to his credit, but that execution had issued for the full amount; that he had paid the excess of the judgment over his probated claim; and after alleging some facts relative to the assignment of the judgment, he prayed for a perpetual injunction against further proceedings on the portion of the judgment remaining unpaid.
These facts set forth in the petition must, on demurrer, be taken to be authentic and true ; and the question is, whether they show equity in the plaintiff and entitle him to relief. There can be very little hesitancy in answering this in the affirmative. The plaintiff, by the shewing, has in effect paid and discharged the identical demand upon which the judgment, now against him, is founded; and this payment was made on an agreement that credit should be given for the amount. Where a payment (especially after the commence
Hor is it affected by the facts in this case, that the discount was due from an estate, and that the agreement to receive it in payment was made by an executor. For aught that appears, the note given to the executors by the plaintiff, may have been for a debt due to the testator in his life time. If so, the mutual demands of the parties operated, to their extent, as an extinguishment of the respective claims of each. (11 Tex. R. 10.) But, admitting that it was given for a debt contracted after testator’s death, as for instance for property of the estate purchased at a sale, yet it was competent to the executors to receive in payment of such debt, the just claim which the plaintiff had against the estate. An executor or administrator will not, unless under special circumstances, be forced to admit a claim against the estate in set-off to a debt contracted after the death of the testator or intestate, as this might lead into embarrassing investigations in relation to the solvency of the estate, and the sufficiency of the assets to pay the claims. But even to this there is an exception, where the solvency of the estate is beyond dispute. (Hall v. Hall, 11 Tex. R. 553.) The rule is for the protection of executors and administrators. It exempts them from compulsion, but does not affect their voluntary action, or deprive them of the power of paying up claims against the estate, by giving credit on claims which are due to the estate, or the ultimate benefit from which will go to the succession. The executor or administrator is presumed to have knowledge of the affairs and condition of the succession. He has the means of ascertain
The claim of plaintiff against the estate had been duly accepted, approved and allowed, and, for aught that appears, formed a sufficient consideration for the promise to give credit. This promise has been broken, and for the breach, the plaintiff is entitled to relief, and to protection against a demand already discharged by him. We are of opinion that there was error in sustaining the demurrer and dismissing the petition; and it is ordered that the judgment be reversed and the cause remanded.
Eeversed and remanded..