Francis v. Henry H. Williams & Co., 14 Tex. 158

Francis v. Henry H. Williams & Co.

14 Tex. 158 | Tex. | 1855

Wheeler, J.

The only question which it is material in this case to consider, is, whether the principal sum admitted by the administrator in 1844, was barred by the Statute of limitations, when this proceeding to enforce payment of it was instituted in the Probate Court. And we are of opinion that it was not.

The controversy in the Probate Court was respecting the right of the plaintiff to enforce payment of the claim for interest, contracted to be paid upon the account. Not having been admitted by the administrator, nor established by suit, the claim for items of interest charged in the account, was disallowed by the Probate Court, and also by the District Court; and is not now in question. In his answer in the Probate Court, the administrator, if not expressly, yet impliedly admitted the principal sum, of which payment was sought, to be a valid, subsisting claim against the estate ; but resisted the application for an order to sell property for the payment of it, on the ground that it was not necessary ; alleging that there were, or would be at the end of the year, a sufficiency of funds in his hands to pay the claim, without resorting to a sale of property for the purpose. He contested the claim for interest, on the ground that it was barred by the Statute of limitations j but it was not until, upon appeal, the case was before the District Court, that he pleaded the Statute to the principal sum, which had been duly presented and admitted by the former administrator as a just demand against the estate of his intestate. But *163it is now insisted for the appellant, that it was barred, because not presented to the Chief Justice for approval. And in support of this objection to the judgment, the case of Danzey v. Swinney, (7 Tex. R. 617,) is relied on. That case, however, was decided upon the law of 1848, as will be apparent by consulting the opinion of the Court, particularly at pages 630 and 631, and has no application to a case like the present. The law of 1848 differs essentially from that of 1840, in that it requires the claim to be presented to the Chief Justice for his approval. (Hart. Dig. Art. 1160.) The law of 1840, contained no such provision. It simply required, that when acknowledged by the administrator, the claim should be submitted to the Judge, that it might be ranked among the acknowledged debts of the succession. (Hart. Dig. Art, 1012.) It is not questioned that this requirement of the law was complied with in this instance, and none other was prescribed. But if it were disputed that there had been a compliance with the law in this respect, and it were necessary to stop the running of the Statute, that the claim should have been submitted to the Judge and ranked, (which, in my opinion, it was not, for I do not doubt that the admission of the claim by the administrator, under the Act of 1840, stopped the running of the Statute,) still, in the absence of a statement of facts, the presumption in favor of the judgment must be, that it was proved upon the trial, that the law in this particular had been complied with. There is, it is true, no averment to that effect in the petition filed in the Probate Court. But the same strictness in pleading is not required in suits commenced in the Probate, as in the District Court. Accordingly, in the case of Danzey v. Swinney, (before cited,) it was held that the approval of the claim by the Chief Justice need not be averred, the Court saying, “ The special objection “ here urged in support of the demurrer, is, that the petition does “ not allege that the claim was approved by the Chief Justice “ of the County Court. That this is essential to support the “ claim, is admitted; but, nevertheless, in the Probate Court, it “ is not a necessary averment, because it may be proved, though *164“not averred.” (7. Tex. R. 624.) And in Moore v. Hardison, (10 Tex. R. 467,) the presumption in favor of the judgment of the District Court, in the absence of a statement of facts, was applied to supply the omission of an averment of an acknowledgement or other exception, necessary to take a claim out of the operation of the Statute of limitations, which, upon the face of the petition, appeared to have been barred. Upon the authority of these cases, it is clear, there being no statement of facts, it must be presumed that there was due and legal proof of the submission of the claim to the Judge to be ranked among the acknowledged debts of the succession, as the law prescribed, if such proof were necessary to support the judgment. Besides, it was admitted by the plaintiffs, and the admission was expressly adopted by the defendant in his answer, that a considerable sum had been paid upon the claim by the administrator, some time after it was admitted as a just demand against the estate. It is fair to presume that this payment would not have been made, if the claim had not been duly presented and ranked, as the law prescribed. It is at least, to be taken as an admission by the administrator, that the claim was placed in a condition to require payment at the time ; and he ought not to be heard now to question it. The approval by the Chief Justice in 1852, was unnecessary, and merely nugatory, and could have no effect upon the claim, which was a valid subsisting demand against the estate, and did not require such approval to give it validity and judicial standing. It was doubtless obtained out of abundant cau tion, upon the principle that, “ abundant caution does no injury.” And, in respect to the effect counsel would ascribe to it, it may suffice to reply in the language of a familiar maxim : utile per inutile non vitiatur.

We are of opinion that the principal sum admitted by the administrator, was a valid subsisting demand against the estate ; and the judgment, being for that sum and legal interest thereon, only from the time it was established in the mode prescribed by law, is legal and correct. It is therefore affirmed.

Judgment affirmed.