McCown's Executors v. Foster

33 Tex. 241 | Tex. | 1870

Walker, J.

This was an action brought by the heirs at law of Mary Corley, who died testate in 1847, to surcharge and falsify the accounts of McOown, the administrator with the will annexed, and to set aside certain sales made by him of lands. There has been very protracted litigation, involving great expense to the parties and their legal representatives, for the ease appears to have outlived a generation of men and women, and a record of four hundred and fifteen pages has accumulated before the case has reached this court.

The case is in the nature of a proceeding in chancery. Certain issues of fact were made up and submitted to a jury, and the findings not being satisfactory either to plaintiffs or defendants, the case was, by consent, taken from the jury and submitted to the court. The judge, after very mature consideration of the law and the evidence, at the April term, 1861, entered a decree, from which both plaintiffs and defendants appealed.

The decree is substantially correct, and we are not disposed to disturb it, except to protect the purchasers at the administrator’s sale3. We think that the administrator, McCown, was guilty of a devastavit, if not of willful malfeasance in office; but it is not made sufficiently clear to us that Ballew and Grayless, the purchasers of the land sold by McCown, are chargeable with complicity or notice of fraud; and as innocent purchasers, they must bo protected. But we will give the plaintiffs below a decree for the value of the land at the time they brought their suit, with interest at eight per cent, from that time until the money is paid. The decree will be against the estate of McCown, the money to be paid by his legal representatives in due course of administration.

In all other respects, the decree of the District Court is confirmed, and the cause is remanded for such further proceedings as may be necessary to carry it into force.

Demanded for further proceedings.