Howard v. Battle, 18 Tex. 673

Howard v. Battle

18 Tex. 673 | Tex. | 1857

Wheeler, J.

It appears that the main ground on which the defendant contested the plaintiff's right, in the Probate Court, was, that he was not a creditor of the estate, and legally entitled, as such, to call on him for payment or settlement. He pleaded that jurisdiction of the case belonged to the District Court, and not the Probate Court; and th e Sta *676tute of Limitations ; but he averred that he was ready and willing “ now and at all times ” to make and render a full account of the'condition of his intestate’s estate, when called on by any one having the authority to call on him for such account; “ and that he will shortly file such account and statement, of his own accord.” It thus conclusively appeers by the answer of the defendant, that the administration had not been closed, and that he had not so much as rendered an account of the condition of the estate, or of his conduct in the administration thereof. The plaintiff’s demand had been acknowledged by him as administrator, admitted by the Probate Judge and ranked among the acknowledged debts of the succession, in accordance with the law then in force. (Hart. Dig. Art. 1023.) It seems that he had obtained an order to sell, and had sold the land, which had been mortgaged to secure the payment of this demand, for that purpose, even before the claim was presented to him for allowance. The claim had been assigned to the plaintiff for value ; and the defendant, shortly afterwards, and with knowledge of the assignment, had promised that when the money was collected it should be promptly paid. It appears, moreover, that he has sold property of the estate, the proceeds of which are not accounted for, and are largely more than sufficient to pay the plaintiff’s demand.. Upon these facts it is difficult to perceive what pretence the defendant could have to resist payment, or upon what ground the Court acted in dismissing the case. The acknowledgment of the claim, and its approval by the Probate Judge stopped the running of the Statute of Limitutions. The claim was not barred ; nor the administration closed. The most that can be said adversely to the right of the plaintiff, is, that he has been dilatory in instituting proceedings against the administrator to enforce payment. But this was, doubtless, caused by the promise of the latter to make payment as soon as he could make collections. The evidence shows that he so promised the plaintiff, shortly after the claim was assigned to him, and *677he had probably made similar professions and promises to the holder, before the assignment, which induced him to defer the institution of legal proceedings, in the reasonable expectation that the administrator would make payment as soon as he was in receipt of suEcient funds. Less than two years had elapsed from the time of the defendant’s promise to pay the plaintiff’s demand, when this proceeding was instituted; and this can not be deemed such delay as to preclude his right to demand payment. In Swenson v. Walker, (3 Tex. R. 93,) where an administrator verbally admitted a claim against the estate of his intestate to be good, and thereby induced a third person to receive the claim, it was held that he was thereby estopped from interposing any defence against it in the hands of such third person. In the present case, to permit the defendant to take advantage of the delay occasioned by the promise to pay when he could make collections, would be to sanction the perpetration of a manifest fraud upon the plaintiff. But for this promise, the plaintiff might have instituted proceedings at once ; and if he failed to obtain payment from the estate, he might have had his recourse upon his assignor. The judgment of the Probate Court was that the administrator render an account of his administration ; and that he pay the plaintiff's demand, in due course of administration, whenever he should have funds in hand suEcient for that purpose. With this judgment the plaintiff was content; and the defendant had no cause to complain. Instead of dismissing the suit, the Court, upon the evidence, ought to have aErmed the judgment of the Probate Court. The judgment must therefore be reversed, and such judgment be here rendered as the Court below ought to have rendered.

Reversed and reformed.