44 Tex. 14 | Tex. | 1875
Appellant, as administrator of the estates of H. L. and M. E. Williams, deceased, filed his exhibit, from which it appeared that, without having obtained the authority of the court therefor, he had
At a subsequent term of court appellees Yarborough & Wimberly, holding an established claim against the estate, contested the right of the administrator to apply the general assets as had been done.
The court refused to ratify the action of the administrator and, adding the amount paid to the holders of the vendor’s lien to the balance reported on hand, directed the administrator to pay it out on claims of the first and second class and afterwards pro rata upon all claims established in the first twelve months. From this order the administrator has appealed.
The children claiming the homestead were not made parties, and no question affecting the extent of their homestead rights is properly before us. Whether they have a right to claim that the vendor’s lien on this sixty acres of land shall be paid out of the general assets is not a question which could be decided in this case. The administrator, as such, has no authority to present for adjudication a question involving the extent of their homestead claim, and that question will not be considered.
Article 5706 of Paschal’s Digest, referring to claims secured by mortgage or other special lien, is as follows: “ If it should appear to the court that the discharge of such special lien out of the general assets would be beneficial to the estate, the payment may be ordered to be made instead of ordering a sale of the property.”
By the expression “beneficial to the estate” we understand to be intended beneficial to the general assets of the
The original action of the administrator was irregular and unauthorized, and that of itself may have influenced the court in its action; hut regarded as an original application on his part under the statute, the record does not show that the order asked for was one which should have been made, and the refusal of which was error.
The judgment of the court below is affirmed.
Affirmed.