Case No. 2197 | Tex. | Feb 12, 1886
The ownership of the land in controversy must depend, primarily, upon the ownership of the land certificate upon which it was granted. If this was in the appellants,
“This right, though neither real nor personal property in esse, was, nevertheless, an inchoate right to get that quantity of land out of some part of the public domain. ’ ’ Johnson v. Uewman, 43 Tex. 639, and cases cited. To perfect this right, and to make it assume the character of personal or real property, tangible, it was necessary that the step required by law be taken, and a land certificate, the evidence of the right, be obtained. The right, imperfect as it was, was property which their ancestor might have sold, and it would seem that such a right, if vested in a minor, would be assets belonging to his estate and subject to administration through a guardianship.
Such a right would peculiarly need the attention of some one, that it might be perfected. That attention would necessarily have to be bestowed here ; for the laws in force here must be observed, otherwise the right could never assume the perfect shape of property, personal or real. The tribunals provided by the laws of this state, would alone have power to adjudicate the claim, and to furnish the complete evidence of the right, which, of itself, has often been held to be property subject to sale under administration. The right necessarily had its situs here, as fully as has land here. It had its existence only by force of the laws of this state, and could never be made effective save through their operation.
We, therefore, feel authorized to hold that the right which the appellees had, at the time John Henry Brown applied for letters of guardianship upon their estates, was property subject to administration through a guardian, and that over it the courts of this state alone had jurisdiction. The letters of guardianship were applied for and granted in the year 1851. At that time there was no law expressly providing for the appointment of guardians of the estates of nonresident minors having estates here, and it is contended that such an appointment was without authority, and, therefore, void. If this were true, it would be decisive of the main question in this case; for, if the court had no power to appoint the guardian, it had no power to authorize him to sell, and no power to confirm the sale made by him.
This was the statute in force when guardianship of the estates of the appellees was granted. It is the statute which conferred jurisdic.tion on the county courts in matters affecting the estates of deceased persons and minors. It is very broad in its terms, and places no limitation on the power conferred, based on the non-residence of a deceased person or a minor. It contains language as applicable to the estates of deceased persons and minors who were non-residents of the state, but having estates here, as to the estates of persons here resident; and, in the absence of something in the statute indicating that it was not intended to confer such power, the courts are not authorized to place limitations upon it, which the legislature did not, in terms, impose, or the subject-matter, under the rules of law recognized by the tribunals of all civilized nations, did not require.
The act must, however, be read in the light of settled principles of law every where recognized; as, that it would not authorize an administration upon the estate of a deceased person, or guardianship of the estate of a minor, unless there was some estate of such person within the jurisdiction of the court, upon which the power could operate, or that it would not authorize the appointment of a guardian of the person of a minor who was neither domiciled nor resident within the state.
The act of March 20,1848, recognizing that the former law gave the power to probate wills and to grant letters testamentary and of administration upon the estates of deceased persons who were nonresidents, provided the manner in which this should be done, and, in this respect, in no way made any distinction between residents and non-residents, except as to the place where these things should be done. P. D. 1260.
The same act, recognizing the fact that the county courts, under the
There could be no resident guardian of such a non-resident minor’s estate, if the county courts had no power to appoint one, and the exercise of the power to appoint here the qualified non-resident guardian of a non-resident minor’s estate is the exercise simply of the power of the court to appoint guardians of the estates of such persons.
The guardianship of a non-resident minor’s estate is necessarily ancillary in character, and as said in Green v. Eugely, 23 Tex. 548, of an administration of that character: “This power to grant ancillary administration is not limited within the scope of express statutory regulation. * * * Our statute, in granting probate powers to the county court, is general. It provides, 1 that the said court shall have the power to take probate of wills, to appoint guardians, grant letters testamentary and of administration,’ &c. * * * This is sufficiently broad to admit an administration to be granted in all cases where the general objects of our system of probate laws may require it, and to enable the court to grant administration, when necessary, in respect to any unadministered property that may be found in the state.”
The laws in force at the time a guardian for the appellees was appointed did not expressly provide in what counties guardianship should be taken out in cases other than those in which the minors were residents of the state, but this does not affect the question of power to appoint guardians for the estates of non-residents. In the case before us, neither the residence of the wards in any particular ' county, nor the locality of the property of which the estate consisted, could determine the matter; for that in which the estate consisted had not locality in any particular county at the time guardianship was granted, though the property directed to be sold, no doubt, was within the county at the time the order to sell it was made, and it was within the state, and, thus, within the jurisiction of the court at the time guardianship was granted.
In considering a similar question in the case of Green v. Eugely, 23 Tex. 539" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/green-v-rugely-4889511?utm_source=webapp" opinion_id="4889511">23 Tex. 539, which involved the question of the jurisdiction of the probate courts of this state over the estate of a person who died resident of another state, and without property here at the time of his death, upon property of the estate being afterwards brought within this state, it was held:
2. That the statute granting probate powers to the county courts was general.
That the statute was sufficiently broad to admit an administration to be granted in all cases where the general objects of our system of probate laws may require it, and to enable the courts to grant administration, when necessary, in respect to any unadministered property that may be found in the state, even though the facts in the given case were such that, under the, laws regulating the place at which administration should be had, no regulation existed by which the place for administration was fixed by an express statute.
4. That in order to give the courts powers commensurate with the general objects of the system, the grant of power was made general, and was not dependent upon the mere contingencies upon which a preference between counties was regulated, but upon the existence of property within this state, whose condition, in reference to the rights of parties in relation to it, called for the application of our probate laws for its preservation and distribution. It will be observed that the laws in force at the time that decision was made, attempted to fix with considerable accuracy the places at which, under different conditions of fact, wills should be probated, and letters testamentary and of administration granted (P. D., 1269); but the power of the courts was not restricted to such cases only as fell within these regulations.
We are of the opinion that an administration in a case which fell fairly within these regulations, not in the county pointed out by them, would not be null. In reference to the place at which guardians should be appointed, and as to the particular court which should have control of a minor’s estate, the former law does not seem to have made any definite regulation intended to meet the exigencies which might arise. It would do violence to the spirit of the law to hold that the county courts had no power to appoint guardians, or to administer the estates of minors, except in cases in which all the details were regulated by express statute. It must be presumed that it was intended that the general power conferred should be exercised in accordance with the general rules applicable to such matters, and enforced in the courts of England and of the states of this union.
In England and America, however the rule may be elsewhere, it is held, that the courts of the country in which property of a minor may be, to whom is confided the general power to appoint guardians and to administer minor’s estates, have the power to appoint guardians of
The appellees having rights here which required protection, these rights having a value, and being property which could exist and be enforced or secured no where else, we cannot doubt that some county court in.this state had power to appoint a guardian for their estates. In the absence of a statute restricting the exercise of this power, by ■ requiring it to be exercised in some particular county, under the facts existing, we are of the opinion that the county court for Calhoun might lawfully exercise it. That the county court of any county in the state might have exercised it. If, as it seems we may, we may look to the laws regulating the places in which wills are required to be probated, and letters testamentary and of administration granted, for analogies which ought to be regarded in such matters, in the absence of a direct statute regulating the place at which guardianship of a non-resident ought to be granted, it would seem that Calhoun county was the proper county. Green v. Rugely, 23 Tex. 551; Goodwin v. Jones, 3 Mass. 522.
If we look to the analogies thus furnished, no one of the regulations except that which provides for the probate of wills and granting of letters testamentary or of administration in the county in which the nearest kin may reside would apply to the facts of this case. P. D., 1260. The petition for guardianship renders it probable that the only kindred the appellees had in this state resided in Calhoun county.
The county court for Calhoun county having jurisdiction, and being a court of general jurisdiction, its decrees, through which the land certificate was sold, cannot be called in question, unless this be done by some direct proceeding authorized by law for this purpose. Brown v.Christie, 27Tex. 73; Guilford v. Levi, 49 Tex. 717; Murchison v. White, 54 Tex. 78 (Tex. 1880)" class="midpage_citation" corrected_citation="54 Tex. 78" court="Tex." date_filed="1880-10-19" href="https://app.midpage.ai/document/murchison-v-white-54-tex-78-tex-1880-3965204?utm_source=webapp" opinion_id="3965204">54 Tex. 78; Fitz v. Fitz, 21 Tex. 511" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/fitts-v-fitts-4889221?utm_source=webapp" opinion_id="4889221">21 Tex. 511. These views are decisive of the rights of the parties, and other questions presented need not be considered. The judgment of the court below will be reversed, and judgment here rendered that the plaintiffs take nothing, and that the defendants recover the costs of this court and of the court below. It is so ordered.
Bevebsed and Bendebed.
[Opinion delivered February 12, 1886.]