17 S.W. 717 | Tex. | 1891
The first and second assignments of error present the question relied on by the appellant for a reversal of this case: Did the decree of the District Court of Harrison County in cause No. 5055, wherein James E. Brown was plaintiff *462 and Wm. Umdenstock, as administrator of the estate of Jonathan S. Brown, deceased, was the sole defendant, convey title to the land as against the heirs of Jonathan S. Brown, who were not parties to the suit?
Counsel for appellant earnestly contends, in a very able brief and written argument, that under the law as it existed at the time the decree was made, judgment in a suit for the title to land brought against the administrator alone without, making the heirs parties thereto would not bind the heirs as to title; and would only determine the right of the administrator to possession for the purposes of administration. He reviews the decisions relied on in support of the validity of such a decree, and pronounces them either obiter dicta, or as inapplicable to this case by reason of the proceeding being under the statute authorizing such suits. We have given the question very careful study, and must confess that it is not without considerable difficulty. The case of Barrett v. Barrett,
But from a review of all the decisions it seems that it has been the settled rule of our Supreme Court to construe the probate law of this State, as it existed up to 1870, as conferring by its general effect the right on the administrator to bring and defend all suits concerning the property of the estate. Thompson v. Duncan, 1. Texas, 487; Howard, Admr., v. The Republic,
While the expressions in the later decisions of the Supreme Court may not have been called for by the facts of the cases before them, yet under the earlier decisions the doctrine assailed is held to be the policy of the law, reached from a consideration of the probate system as a whole. As the law was prior to 1848 the administrator had no more right to sue than to defend; yet in Howard, Administrator, v. Republic this language is used: "The act of the administrator is not for his own advantage, but for the benefit of the heirs of the deceased. Having the care and control of the entire estate, it would seem to be his peculiar duty to prosecute and defend suits in which the succession is interested during the continuance of the trust he has assumed." The right alone to recover possession of the land for the purposes of administration could not have been in the mind of the court, for possession without title would be of little value where lands are to be administered and sold for the payment of debts.
If it were presented to us as an original question we might be disposed to take a different view; but there is a line of decisions, although most of them not strictly authority, adopting a rule of law under which property rights have accrued, and it is too late now to change to a new rule, although it might be a more logical one. The question is now fully settled by the statute. Rev. Stats., arts. 1201, 1202. When the decree of the District Court of Harrison County was rendered the cases of Graham v. Vining, Howard, Administrator, v. Republic, and Thompson v. Duncan, and other cases to the same effect, had already announced the rule that the heirs were not necessary parties to a suit brought by or against an administrator concerning land belonging to the estate. We are of the opinion that the decree was binding on the heirs of J.S. Brown.
Appellant cites the case of Rudd v. Johnson,
Affirmed.
Adopted December 8, 1891.
Judge FISHER, having been of counsel, did not sit in this case.
A motion for rehearing was refused.