14 Tex. 312 | Tex. | 1855
Hillebrant had a claim against the estate of J. W. Burton, deceased ; he presented it to the administrator of Burton, Green; it was allowed; and on the first day of March, A. D. 1844, it was approved by the Probate Judge. Subsequently one Jasper was appointed administrator de bonis ■non of the estate of Burton; and on the 16th day of October, A. D. 1848, Hillebrant filed his petition with the Probate Judge, setting forth his claim, its allowance, and approval by the Probate Judge, its being ranked among the acknowledged debts ■of the succession, the failure of the administrator to pay it, and that he had paid other debts not of a superior rank to it; •prayed the administrator be required to make an exhibit of the ‘Condition of the estate, and for an order of sale of a portion of the lands belonging to the said estate, to pay the whole amount •of the claim, or if the estate was not able to pay the whole, that he should be paid his proportion out of the assets of the ■estate. The administrator filed an answer, asking time 'to make his return. There was an order of sale, from which the ■•administrator appealed to the District Court. Before the appeal was decided, Jasper, the administrator cle bonis non, was removed, and Miller was appointed in his place. Afterwards, on a suggestion to the Court, that the infant heirs of Burton were interested in the appeal, Moore was appointed guardian ad litem to the infant heirs. He, on the 10th March, 1858, filed an answer, alleging that the claim of the petitioner Hille'brant, had been acknowledged and approved after it was barred by the Statute of limitations, and praying that the allowance of the same be set aside or annulled. To this answer, Hillebrant demurred, and his demurrer was sustained and the petition dismissed. The guardian sued out a writ of error, to reverse the judgment of the District Court, dismissing the appeal.
There can be no doubt, at this day, that an administrator oían executor cannot charge the estate he represents, by the acknowledgment of a debt barred by the Statute of limitations. (See Moore’s Administrator v. Hardison, 10 Tex. R. 467.) But to set aside a judgment of the Probate Court, approving such allowance, proceedings for that purpose must be instituted in the District Court. (See Adm’r of Jones v. Underwood, cited above.) If the guardian had commenced proceedings in the District Court, and showed the fact that the claim was barred before its allowance and approval, there can be no question but the claim would have been set aside and annulled, if the suit for that purpose was brought in time. After a long delay, it would not be enquired into, because the debt may have been valid, and not barred, by reason of some one of the exceptions in the Statute of limitation, the evidence of which may have been lost by lapse of time; hence a Court of Equity would not be disposed to disturb the judgment, nor would our District Court, governed by principles of equity. We do not say whether the lapse of time is so great in this case, as to cut off the enquiry whether it was a valid debt against the estate when allowed and approved; because that question is not before us. We believe that the main question presented in this case has been so well settled by the cases referred to, as to render
Judgment affirmed.