Harwood v. Wylie

70 Tex. 538 | Tex. | 1888

Collard, Judge.

We can not give our assent to the validity of the administration of Robert Evans’s estate. Evans-perished at the Alamo with Travis on the sixth of March, 1836, having no fixed place of residence in the State. On the tenth day of January, 1851, nearly fifteen years after the death of Evans, one J. Castania applied to the county court of Harris county for letters of administration upon his estate, alleging that decedent had no fixed domicile, and no kindred in the State. The application did not show that there were any debts against the estate, nor were there any in fact.

The statute in force at the time the application was filed required that, if deceased had no domicile or fixed place of residence in the State, but died in the State, letters of administration shall be either in the county where his principal property was at the time of his death, or in the county where he died. (Paschal’s Digest, 1260.)

The pretended order of administration does not designate the estate of Robert Evans. There is a list of fourteen estates by name, and an order that Justin Castania be and he is hereby appointed administrator of this estate. Several terms later, on July 2, 1871, the minutes of the court show a list of eight of the estates in the former list, including the estate of Robert Evans,, and an order reciting that the administrator had filed his inventory and bond, which are approved and ordered to records and concluding as follows: “It is ordered that letters of administration issue according to law.” In neither of the orders is any particular estate mentioned. Fifteen days after the record order, Castania, as administrator of the Eobert Evans estate, applied for sale of a sufficient quantity of the estate (consisting of three surveys, nineteen hundred and twenty acres by virtue of Evans’ bounty certificate, one-third of a league his headright, and six hundred and forty acres his donation, located in Navarro county, Texas), to pay the costs of court, estimated at sixty dollars, and the administration charges for obtaining the certificate, ten dollars, and locating the same on the land sought to be sold two hundred and fifty-two dollars and twenty-five cents. The sale was ordered on a credit of twelve months; the sale of all the land was made to W. R. Baker, clerk of the court, for three hundred and five dollars on twelve months time; report made and confirmed; the order of confirmation allowing Baker to pay the amount bid in cash, he having so elected, and deed ordered upon such payment. The order of confirmation was made September 39, 1851.

There ought to be some limit of time after death when administration could be taken out upon an estate, even in the absence of a statute. In case of a second administration upon the same estate it seems the time is fixed at such period as would raise a presumption that all debts had been paid. The statute as revised fixes the time- at four years after death of the intestate. (Waldrup v. Jones, 23 Texas, 491; Eevised Statutes, art. 1837.) We think the administration attempted to be taken out upon the Evans estate should not be recognized. It was attempted too late, and, besides, there are other reasons for it. The proceedings in the probate court show that the administration was intended to consume the estate in costs and administrator’s fees. The whole estate was so converted by the administrator and the officers of court in as brief a time as it could have been done under the forms of law. The administration was not taken out in the county where the statute declared it should be, but in another remote county where the parties interested in the estate had no reason to expect it, thus rendering is more easy to plunder and misapply the property without the knowledge of the heirs; and all this was done nearly fifteen years after death of intestate. Courts should not hold an administration valid even in a collateral attack when it is shown to have been obtained for fraudulent purposes •and by methods violative of express law. We do not think the probate court acquired jurisdiction of the estate; but it may be admitted that the administration could have been legally obtained at the time and in the county where it was attempted; still it can not be said that there were any orders of the court granting the administration. The orders only pretended to appoint an administrator of one estate, which one out of the list of fourteen in the first order or out of the eight in the second order can not be ascertained. Neither of the orders refers to any particular estate.

Opinion Adopted April 17, 1888.

We can not see that the orders should be made to apply to any particular one of the estates. The orders are not definite. They purport to grant administration upon one estate out of a number without stating which one; in such case they should be held to apply to none of them.

But again: It might be conceded that the administration upon the Robert Evans estate was valid, the sale would convey nothing to Baker in the absence of proof that the land sold was at the time of the sale located by virtue of the certificate now relocated on the land in controversy. The sale was made and confirmed before the thirtieth day of September, 1851. It was in proof by the Commissioner of the General Land Office that the certificate for nineteen hundred and twenty acres was not located until the twenty-fourth day of Hay, 1852. The county surveyor of Navarro county testified that the records of his office showed no location of the certificate in his county. It seems from this that the land sold had not been appropriated by the certificate at the time of the sale, but was some eight months after-wards. The land was sold, not the certificate. Had the certificate been located on the land at the time of the sale, that is, if the certificate had been filed on the land so as to sever it from the public domain at the time of the sale, the effect would have been to convey the certificate; not so if the certificate had not been located. The certificate in such case was not sold, and when it was floated and relocated on the land in controversy, the land was indisputably the property of Evans’s estate.

We conclude from the foregoing that the judgment of the court below ought to be reversed and here rendered in favor of defendants; that plaintiff, Thomas N. H. Wylie, take nothing by his suit against defendants, appellant in this court, and that they go hence without day. ' Reversed and rendered.