McMahan & Co. v. Harbert's Administrators

| Tex. | Jul 1, 1872

Walker, J.

This is an action by T. H. McMahan & Co., brought in the district court against the administrators de bonis non of the estate of Wm. Harbert, deceased, to enforce the payment of a debt created by a former administrator, Thomas C. Harbert. Thomas C. Harbert, it would appear, qualified as the administrator of his father Wm. Harbert’s estate, in the year 1865 ; that during that year and the year 1866, he carried on a large plantation, which belonged to his father’s estate; that during a portion of the time he was absent from the estate; and that Stephen Harbert, one of the defendants to this action, acted as agent for his brother, Thomas C., during his absence.

The plaintiffs in the action were commission merchants, with whom William Harbert in his lifetime transacted the business of his plantation; and after his death his administrator continued to transact the business with the plaintiffs as commission merchants, purchasing supplies for the estate, taking up money on account, and making sales of the products of the plantation. In the progress of this business, it is claimed by the plaintiffs that a large balance accrued in their favor. The account is set out in the petition, and consists of money, and supplies of different denominations, such as would be necessary to one carrying on a large plantation. It would appear from the petition, that during the year 1866, Thomas C. Harbert had obtained an order from the probate court to carry on the plantation for that year.

At the December term of the probate court of Colorado county, for the year 1867, Thomas C. Harbert was removed from the administration of his father’s estate, and the defendants below were appointed administrators de bonis non. It is insisted by the plaintiffs in error, that the estate of Wm. Harbert, deceased, is liable for their debt; that the heirs of the estate were greatly benefited by having the plantation carried on; that they received all the benefits resulting from the business transactions between the plaintiffs and the administrator ; and that large advances, or dividends, had been paid to them out of their father’s estate. Were this a proceeding in equity against the heirs of Wm. Harbert, deceased, we should give it great consideration ; but it is an action brought against the administrators de bonis non, to fix a liability upon the estate. This might seriously affect the creditors; and although it is claimed that the estate of Wm. Harbert owed but few debts, it does not appear that all those debts have been discharged.

Thus it will be seen that, were we to recognize the principle of law as claimed by the plaintiffs in error, the creditors of Wm. Harbert, deceased, might be seriously affected in their rights by the allowance of claims created by the administrator, for which the estate was not liable at the death of the intestate.

We are clearly of the opinion that it is beyond the power of an administrator to create a debt which can bind the estate of his intestate. (See McKinney v. Peters et al., Dallam, 545.) In the case of Price v. McIvor, 25 Texas, 766, Chief Justice Wheeler refers to Article 1340, Paschal’s Digest, as containing the only law under which an administrator can create a debt against the estate he represents ; and this section of the statute will not warrant an administrator in creating a debt such as herein sued for. Mor was it in the power of the probate court to authorize the creation of such a debt. (See Francis v. Northcoat, 6 Tex., 185" court="Tex." date_filed="1851-07-01" href="https://app.midpage.ai/document/francis-v-northcote-4887359?utm_source=webapp" opinion_id="4887359">6 Texas, 185.) Other cases have been decided at the present term of the court, in which the law regulating the presentation of claims, and the bringing of suits thereon, has been commented on, and the view we take of this case renders it unnecessary that we should discuss that branch.

The cases of Montgomery and Wife v. Culton, and Montgomery and Wife v. Nash and others, 18 Tex., 736" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/montgomery-v-culton-4888808?utm_source=webapp" opinion_id="4888808">18 Texas, 736, and 23 Tex., 156" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/montgomery-v-culton-4889451?utm_source=webapp" opinion_id="4889451">23 Texas, 156, et seq., are insisted upon as authorities in this case. The cases are not applicable ; and we would here suggest that were this suit brought against the heirs of William Harbert, upon a state of facts analogous to that foxmd in Montgomery and Wife v. Culton, we should not hesitate to apply the doctrine of that case. That was an action based upon a-^on-tract between Terrill, as the administrator of Benjaniin F. Stockton’s estate, and Anne B. Montgomery, the' sole heir of Stockton, and her husband John Gr. Montgomery. The Montgomerys had relieved Terrill from the administration, upon a contract to hold him harmless of the debts of the estate. The estate had then passed to the heir, and it was shoxvn upon the trial that Mrs. Montgomery had directly and indirectly received the entire benefit derived to the estate by the creation of the debts sued on. Four hundred dollars of money had been borrowed to defray the expenses of Mrs. Montgomery whilst a girl at school. We make a short but very comprehensive extract: “It appears, then, that the defendant not only procured the removal of the executor, his office in fact ceasing at the pleasure -of the said Anne E. under the will—that they not only took entire possession and control of the whole property, with all its fruits and profits, but expressly stipulated, in effect, that they would pay the just demands against the estate; for this is the substantial effect of their agreement to hold the executor and the specific legatees harmless against such claims. Can it be doubted that they hold the property charged with the liabilities to which it had been subject in the hands of the executor? The effect of an ordinary transfer of property from one person to another, with an agreement on the part of the one who receives, that he will pay the just demands against the one who makes the transfer, is to raise a trust for the creditors of the ■assignor, though the transfer was made without their knowledge; and they may maintain their actions against the assignee.” (Wallis v. Beauchamp, 15 Texas Reports, 305, and cases cited.) In adopting and approbating the doctrine here laid down, we must not be L unc^srstood to hold that the claim of the plaintiffs in L error is a just claim against the estate of Wm. Harbert, ^-deceased ; but suppose the case at bar to have been ■analogous to that decided in the opinion of Chief Justice Hemphill, and we should at once apply the- same equitable principles which governed that case.

If it can be shown that the heirs of Wm. Harbert approbated or acquiesced in the creation of the debt lor which the plaintiffs sue, and have actually been the recipients of benefits derived therefrom, there can be no doubt but that they are in equity bound to pay it; but the action cannot be maintained against the administrators de bonis non, and we therefore affirm the judgment of the district court.

Affirmed.