2 Tex. 182 | Tex. | 1847
delivered the opinion of the court.
We have never been very particular as to the form in which the plaintiff presents his cause. If it shows a cause of action, in terms comprehensible, the requisites of the petition are sufficiently complied with.
The petition shows that there had been an administrator on the estate of their father, and that the property sued for had been in the possession of the administrator; that he had put it out of his possession, by pledging it to the defendant in the suit; that he shortly afterwards died.
Now if the administrator, having possession of the effects of his testator, abuses his trust, and uses such property as his own, lie thereby renders himself liable for it to the creditors, or heirs, or other persons having a right in the estate, and his accountability is secured by the administrator’s bond; his death could not relieve his estate and his security for the faithful administration from liability.
If it should be conceded that the property had not changed title, by the disposition he had made of it, who had a right to sue for? Not the heir, but the administrator de bonis non, as property not administered on. It is clear that in. any aspect that the heirs and creditors were safe, so far as we are to judge ■from the petition, because the first administrator would be liable and the administrator de bonis non could assert whatever right the law gave him to the property. It may well be doubted, if the defendant in this action could have protected himself by a plea of former recovery, had there been a judgment in this case against him, and he had been afterwards sued for the same property by the administrator de bonis non. And this view of the subject is applicable to another point growing out of the petition; it is alleged that the property had been demanded previous to the com