Mitchell v. Harrison

32 Tex. 331 | Tex. | 1869

Morrill, C. J.

As the duties, powers and liabilities of administrators of the estates of deceased persons are fully and clearly designated by the statutes, a resort to the statutes without any other or further labor, is all that is required in deciding the case now before us. The collection and preservation of the property, the payment of the debts of the deceased, and the rendition of the property to those entitled to receive it, are the prominent duties. The case of the minor children forms no part of an administrator’s duties, except so far as to. see that the property required to be set aside for the family of the deceased is not taken into the possession of the administrator adversely to those entitled to receive it.

In this case the administrator, in the settlement of his administration, set up a claim against the estate as guardian of the children of the intestate, without pretending to have been a guardian. And as it is not pretended that the administrator did what the Chief Justice was required to do by Art. 1305, Pasch. Dig., viz: set aside to the children certain property of the estate for their support, we see no error in the court in dismissing the petition.

As the case appears by the petition, there was nothing before the court to give it any jurisdiction. If the Chief Justice of the County Court erred in auditing and settling the administrator’s account as provided in Art. 1350, Pasch. Dig., the administrator had the right of appeal to the District Court, agreeably to Art. 1381, and in that case a transcript of the proceedings in the case would have been transmitted to the District Court, when and where the court could have been enabled to have come to a correct conclusion and judgment, as provided in Art. 1385.

Whether the administrator, after neglecting and failing to take the statutory remedy of appeal, can resort to the extraordinary remedy in this case without showing any reason for not complying with the remedy furnished by the statute, might be very questionable. But wdiat renders the petition clearly exceptionable is the fact, that the plaintiff seeks to make the guardian a party in the appellate court, when he was no such party in the County Court, and there is no such cause shown, or is it apparent why he should be a party.

As we see no error in the judgment of the court, it is affirmed.

Affirmed.