33 Tex. 705 | Tex. | 1871
This cause has been twice decided by this court, and a rehearing granted each time, and the cause is now submitted on additional argument and brief, both for appellant and appellee ; and after a careful examination of the record and all the authorities at command, bearing upon the single question which we deem material to settle the rights of the parties, we have been unable to discover in either of the able and well digested opinions of this court, delivered in this cause on former occasions, any error sufficient to authorize a change in the general conclusion arrived at in either of those opinions.
That there is but one question presented in this cause for the decision of the court, is patent upon the, face of the record, and admitted by counsel for appellant and appellee, namely: Was the headright certificate, for one-third of a league of land, issued by the board of land commissioners for Harrisburg county, on the twenty-sixth day of September, 1839, to the heirs of Randolph Slater, assets in the hands of the administrator, and subject to the payment of the debts of the deceased ? It is not denied that if the certificate issued, to the heirs of Slater, as his heirs, or issued to the heirs in the right of Slater, oj issued in the discharge of some obligation due from the government to Slater during his life, then it became assets in the hands of Slater’s administrator, and subject tó his legal obligations. But if the grant was made directly to the heirs of Slater, as a voluntary gratuity or donation, because of the heroic deeds or
The declaration of independence was made on the second of March, 1888, only nineteen days before the surrender of Fannin at Goliad. Slater was a soldier in Fannin’s battalion, and the presumption is therefore very strong that he was in Texas on the day of the declaration of independence, and entitled to land under the authority of that Constitution as a citizen. But there can be no doubt that he was living in Texas before and at the time of the adoption of the Constitution, and was fighting for Texas liberty, and was clearly entitled to a grant of land under that instrument at the time of his death. This was clearly the view taken by the Congress of the Republic; for, in 1837, an act was passed fully recognizing the rights of volunteers, whether residents, non-residents or aliens, which declared “ that every volunteer who arrived in the Republic after the second of March, 1836, and before the first of August, 1836, and has received, or may hereafter receive,'
We are unable to come to any other conclusion than that the Congress intended to facilitate the discharge of a meritorious debt, due to the deceased during his life^ by directing that the certificate should issue to his estate. The act of the - Legislature passed in 1850, (Hart. Big, 705,) is believed tobe but a re-acknowledgment of the pre-existing rights of those who fell with Fannin and others, and an. act to provide for the issuance of certificates to the heirs. The peculiarity of the language of that act is worthy of notice. It provides for the issuance of certificates in right of those who were heads of families, and in right of those who were single men. If this statute he a correct interpretation of the object and intent of those grants, then the certificates could not have been intended as a gratuity or donation to the heirs, nor could they have issued in right of the heirs. The quantity of the land granted and the character of the grant (it being a headright) precludes the hypo
From this reyiew of the cause before us, we are forced to the conclusion that the certificate issued to the heirs of Randolph Slater by the board of land commissioners of Harrisburg county, in 1839, was for a headlight to which Slater was entitled during his lifetime and at his death, and was therefore assets in the hands of the administrator and subject to the debts of Slater. We are hardly disposed at this time to investigate the question of the legality of the acts of the administrator in making the sale, because of the great lapse of time, and particularly as the evidence discloses the facts that the sale was made by the administrator and the same was confirmed by the probate,court; and now this court, in the absence of proof to the contrary, will presume that the sale was made in conformity with the law. Appellant shows a regular transfer of title from the administrator of the estate of Slater to himself, for the land in controversy, and we are of the opinion that his is a good and valid title, and the court below erred in giving judgment for the defendant. The judgment is therefore reversed and reformed in accordance with this opinion.
Reversed and reformed.