17 Tex. 391 | Tex. | 1856
This suit was brought by the administrator de bonis non, against the former administrator and his security on his administration bond, alleging as a breach of the bond, that divers articles enumerated, and sums of money, assets of the estate, had come to the hands of the former administrator, ■and by him were never accounted for in his administration, but converted to his own use. The security demurred to this petition. It does not appear that the former administrator had citation served on him, yet judgment by default was taken. This is not before us now, but it is noticed, that it may be corrected when the case goes back. We have only now to deal with the demurrer of the security on the administrator’s bond, on which the case went off.
It is not necessary to discuss the question whether the abuse of trust on the part of the former administrator should first be established in the Probate Court, analogous to a devastavit, before suit could be brought in the District Court on the administration bond. That question was settled in the- negative, in Francis v. Northcote, 6 Tex. R. 185.
By Art. 1224, Hart. Dig., defining the powers of an administrator de bonis non, it is expressly provided, that “ they shall “ have power to settle with the former executor Or administra- “ tor of the estate, to receive and receipt for all such portion “ of the estate as remains in their hands. They shall have “[power to bring suit on the bond or bonds of the former exe- “ cutor or administrator in their own name as administrator “for all the estate that has not been accounted for by “ such former executor or administrator.” We regard this provision in our statute as conclusive in support of the plaintiff’s action, and against the correctness of the judgment of the Court below in sustaining the demurrer. There is nothing in the case of Murphy v. Menard, 11 Tex. R. 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 20th, 1848, to regulate
Reversed and remanded.
