66 Tex. 297 | Tex. | 1886
An application was filed in the county court of Wilson county, under Revised Statutes, Ch. 14, Title 37, to withdraw from administration the estate of Mrs. Mary A. Mayes, deceased. This application was concurred in by a large majority of the persons entitled to portions of the estate, and their request was that the property should be delivered to E. D. Mayes, one of their number. This request was granted by the county court over the objections of the administrator, R. C. Houston, and from this judgment of the county judge, he appealed to the district court. . Upon a trial de novo in the district court, judgment was rendered as in the court from which the appeal was taken, and an additional order made that the administrator be discharged, and the estate closed.
From this decree, the administrator alone appealed. He complains that the court erred in ordering him to deliver to E. D. Mayes the whole estate, instead of the portion to which he was entitled; that the court did not order a partition of the estate before delivering any of it to E. D. Mayes, and that it discharged the administrator without a prayer to that effect in the pleadings. The provisions of the chapter
When both these classes are satisfied the administrator, who manages the estate in their interest, has no reason to be dissatisfied for any supposed injustice done them. The bond required under Art. 1965 protects creditors. It is in double the amount, and the court sees that it is executed by solvent sureties. Art. 1969. They are further protected by having a lien upon all the estate in the hands of the distributees, and those claiming under them with notice of such lien, to secure the ultimate payment of the bond. Art. 1968. The law substitutes these remedies in place of those they would have had against the administrator, and in doing so provides more ample security for their debts than they otherwise would have had.
As to the heirs, if they all consent to the disposition of the estate made by the court, whether it be given to one or to all the parties entitled to it, there can be no complaint on the part of any of them with the action of the court. If some do not consent and are dissatisfied, such heirs should make their objections at a proper time and in a proper manner. Art. 1818 of the Revised Statutes provides that any person interested in an estate may, at any time before any applications or other proceeding is decided upon by the court, file opposition thereto in writing, and shall bé entitled to process for witnesses and evidence, and to be heard upon such opposition as in other suits. The parties entitled to share in the estate who are opposed to its withdrawal, should have filed their opposition thereto either in the county or the
It was difficult to understand how the portion of each heir could be assigned to him without a partition; but as the whole estate was delivered to B. D. Mayes without objection by the heirs, the necessity for a partition was removed. The right to it, however, still exists. The heirs, by failing to object to the delivery of the estate to one of their number, did not waive their right to have the partition. This was something that could not take place, except upon their request. It was not matter in issue in the contest relative to withdrawing the estate from administration, and was not decided in that proceeding. Parties entitled to any portion of the estate may yet have a partition and have their interests delivered to them. The discharge of the administrator was not asked in the pleadings, nor was it necessary that it should have been. The statute required the court to discharge him and to close the administration when it was withdrawn from the court, and it was the duty of the judge to make this order without a prayer to that effect. Art. 1972.
There is no error in the judgment and it is affirmed.
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[Opinion delivered May 21, 1886.]