42 Tex. 311 | Tex. | 1874
Appellants, as heirs at law of their deceased father, August Kleinecke, brought this suit, in August, 1854, against Woodward, as the purchaser at an administration sale, made by Henry Wilson, administrator of their father’s estate, of a German emigration 640 acre land certificate, claiming
The defendant, besides a general denial and limitation, plead that the action was in the nature of a Bill of ¡Review, and was not commenced within two years from the date of the proceedings.
By an amendment, plaintiffs set up their minority at the .time of sale, alleging their respective ages to be -thirty-eight and forty at the date of the amendment, and stating that they knew nothing of the existence of the certificate or of the patent until 1814.
Exceptions to defendant’s plea of limitation were sustained, and a jury being waived and the cause submitted to the court, the evidence was heard and judgment renderedin favor of defendant.
The evidence shows the facts as to the contents of the petition for letters and sale to be as stated by plaintiffs ; that the certificate was appraised at one hundred dollars; was sold
On the other hand it was proved that the administrator, Wilson, who died in 1867, was the brother-in-law of plaintiffs, and stood high as a man of honesty and integrity. The clerk of the court at the time of the sale testified that the sale was made after due notice and with perfect fairness, and that certificates of the land were then worth twenty or twenty-five dollars. The defendant on the stand denied all collusion between himself and the administrator for the sale of the certificate, and stated that he purchased it at public sale in perfect good faith and gave its full value. It appeared also that August Kleinecke died in 1851.
The administration was had under the Probate Law of 1848, and to that law and the decisions made under it, and similar laws, must we look for the authority of the court to grant letters. By the second section of that act, applications for letters of administration are required to be in writing; but nothing is said of its being essential that the application should state the fact of the existence of claims against the estate, or other fact showing the necessity of administration. Appellant, cites no authority in support of his position that the jurisdiction of the Probate Court was dependent on the averment in the application of facts showing the necessity of administration, and the court- held such to be the law. ¡Nor can we say that the chance of any evidence of the presentation or approval or existence of claims against the estate justifies us in holding that the court had no j urisdiction to grant letters. The authority of the court is not made by the. statute dependent upon the existence of debts. The case of Blair v. Cisneros, 10 Texas, 46, is cited by appellant. But the great lapse of time, sixteen years, after the death of the intestate, appears
The assignment, based on the position that the order of sale is void because the petition was not sworn to or accompanied by a statement of expenses and claims, is equally untenable. These requirements of the Act of 1848 must be held to be directory. In Alexander.v. Maverick, 18 Texas, Jnstice Wheeler says that if the absence of a petition in writing appeared affirmatively from the record, it would not defeat the jurisdiction to order a sale. In the same case the same learned j udge remarks of Finch v. Edmondson, cited by appellant in support of this assignment of error, that it was decided on the particular provisions of the Act of 1846, and the sale was adjudged void on account of fraud, which.is always a sufficient ground for setting aside sales.
And this brings us to the question of the alleged collusion or fraud. The record certainly fails to disclose any good reason for the administration, which appears to have resulted simply in the sacrifice of the certificate without any benefit to any one interested in the estate. The purchaser was the attorney for the administrator, and would, perhaps, be unable, if not himself involved in the alleged fraud, to claim that protection which the law would give an innocent purchaser. But, aside from the fact that the judgment given by the court amounts to a finding of tlie issue of fraud in favor of defendant, and that this find
The judgment is affirmed.
Affirmed.