McLane v. Belvin, 47 Tex. 493

McLane v. Belvin

47 Tex. 493 | Tex. | 1877

Moose, Associate Justice.

It is unnecessary for us to give any special consideration to most of the questions raised and discussed by counsel in this case, for it is quite apparent, from an inspection of the record, that appellant, who was the ■ plaintiff in the District. Court, failed to cxliibit, either in his original or amended petition, any ground of action entitling him to a judgment, as prayed for, against the estate represented by appellees. If, therefore, it was conceded that the court erred in its rulings on other and subordinate points, *501such error would afford no ground for the reversal of the judgment.

The ground of action upon which this suit was first brought, as appears from the original petition, is an assumpsit, or undertaking, by two of the executors of Asa Mitchell, deceased, without the assent of the third executor, and notwithstanding his positive refusal to join therein.

That power conferred, either by will or deed, on two or more executors or trustees, unless a different intention is expressed in, or can be properly inferred from, the will or instrument by which the power is conferred, cannot be legally and properly executed, unless all the parties to whom such power is delegated join in its execution, is too well settled for discussion, or to require the citation of authorities for its support. (Hart v. Rust, 46 Tex., 556.)

It is not questioned that there may be cases where there is an imperfect or defective execution of a power conferred upon executors or trustees, which will be upheld and supported in equity, or whore the executors or trustees will be required to complete its proper execution. But it cannot be insisted that this action, as originally brought, makes any pretense of being a case of this kind.

By the terms of the will, all control of the Probate Court over the estate, so long as it remained in the hands and under the control of the executors, was limited to the probate of the will and the return and record of an inventory of the property. It cannot, therefore, be pretended that the presentation of the claim upon which the suit is brought to the chief justice, after its allowance by the two executors, who were attempting, by their agreement -with McLane, to bind the estate of their testator, and its approval and registration by him, gives it any force and validity than it otherwise had.

If it should be said that the allowance of the amount claimed by McLane, by the two, executors by whom it was made, was not an original undertaking and promise by them as executors, but was merely a recognition of an existing in*502debtedness against'the estate, it is answered, that the original debt, to which vitality was sought to be given by the action' of these two executors, had been fully paid and satisfied by the testator, as he supposed and declared, in effect, in his will. But whether it had been legally discharged or not, certainly two of the executors could no more renew the obligation or bind the estate for its repayment, without the consent and in opposition to the express wish of their co-executor, than they could execute any other power delegated to them as executors by the will, without his joining therein; and if the approval of the two executors should be treated as of no effect whatever, then the suit should not have been brought, as it evidently was, in the first instance, on the agreement and undertaking of these executors, hut it should have been upon the original demand, as was attempted to be done by the amended petition.

If the amended petition had been filed before limitation had run against the cause of action disclosed in it, it would have been necessary for us to consider the effect of its alleged payment in Confederate money, in connection with the circumstance under which it was made. But, as such was not the case, it is altogether unnecessary for us to do so; for, manifestly, whether we regard the amended petition as brought upon the note alleged to have been delivered up to Mitchell through duress, or for the recovery of damages sustained by such duress, it was barred before the amendment was filed.

bTor can it be properly said that the amended petition is merely an enlargement and correct statement of the cause of action disclosed in the original petition, and therefore limitation against it can only be computed to date from the filing of the suit. The claim or demand which McLane made against the estate of Mitchell was, no doubt, based upon or originated out of the note in payment of which, as he alleges, through duress, he accepted Confederate money. But the original action, as has been already said, was not brought *503either upon the note or the alleged duress, hut was grounded solely on the assumpsit or undertaking of the executors, Belvin and Joyce, to pay the amount for which the suit was brought.

There is no error in the judgment of which appellant can complain, and it is therefore- affirmed.

Affirmed.