Johnson v. Morris

45 Tex. 463 | Tex. | 1876

Moore, Associate Justice.

The court did not err in overruling the demurrer to the plaintiff’s petition. It has been repeatedly decided by this court that an administrator de bonis non may sue the former administrator and Ms sureties for the property of the estate in his hands unadministered. (Martel v. Martel, 17 Tex., 396; Baldwin v. Dearborn, 21 Tex., 446; Boulware v. Hendricks, 23 Tex., 667; Grant v. McKinney, 36 Tex., 62.) If a contrary doctrine has ever been announced, it has been through inadvertently giving a construction to what is said in the cases of Murphey v. Menard, 11 Tex., 673, and Johnson v. Hogan, 37 Tex., 77, without a due observance of the facts in these cases and the questions they involved. In neither of these cases was the court called upon to decide whether a suit might be maintained by the administrator de bonis non against his predecessor and his surety on his bond for property of the estate which came into his possession and upon which he had not administered. But they in effect involved the right of the administrator de bonis non, by suit on his predecessor’s bond in the District Court, to correct and revise the action of the Probate Court on his accounts.

The distinction between the two classes of decisions which we have cited above is plainly pointed out in the case of Martel v. Martel, in which the court held that an action just such as the present could he maintained. Judge Lipscomb says: “There is nothing in the case of Murphey v. Menard, 11 Tex., 673, repugnant to this conclusion. The only point settled in that case is, that an administrator de bonis non cannot sustain an action under the 121st section of the act of March 20,1848, to regulate proceedings in the County Court, pertaining to the estates of deceased persons, (Hart. Dig., art. 1230,) nor under any other section of that act, nor on general principles, in the District Court, to revise the settlement of a former administrator; such proceeding lies at the suit of a creditor, legatee, or distributee only.”

The statute makes the inventory of the estate returned by the administrator prima fade evidence of the property of the estate in his hands. Certainly the mere loose and indefinite opinion of a witness, such as that excluded by the court, cannot he admitted in evidence to impeach or contradict the written admission of the administrator by his.inventory, showing that a larger number of cattle than the witness thought the intestate owned at the time of his death had come into Ms possession as such administrator; nor was there any error in permitting the discontinuance of the suit as to Johnson, who, from the testimony, the jury found to be wholly insolvent, or Mrs. Pratt, upon whom service had not been obtained. The judgment is affirmed.

Affirmed.