Pleasants v. Dunkin
47 Tex. 343
Tex.
1877
Check Treatment
Gould, Associate Justice.

It is contended that the transcript from the Probate Court of Washington county shows on its face that the court had no jurisdiction over the estate of George W. Davis. The first ground on "which this is claimed *354involves the proposition that, under the laws in force in January, 1840, the Probate Court of Washington county had no power to grant letters of administration on the estates of persons who were not “inhabitants of or resident in said county at the time of their decease.” The 24th section of the act of December 20,1836, “organizingthe inferior courts and defining the power and jurisdiction of the same, (Hart. Dig., art. 252,) is as follows: “ Thb chief justices of the County Courts shall be judges of probate for their respective counties; shall take the probate of wills; grant letters of administration on the estates of persons deceased, .who were inhabitants of or resident in said county at the time of their decease; shall appoint guardians to minors, idiots, and luna^ tics; and, in conjunction with the associate justices, shall examine and settle the accounts of executors, administrators, and guardians; and said chief justices shall have full jurisdiction of all testamentary and other matters appertaining to a Probate Court within their respective counties.” Conceding that, as an original question of the construction of this act, standing alone, it might well be questioned whether it did not limit the jurisdiction of the court as is claimed, we remark that, prior to the grant of administration on the estate of Davis, there had been other legislation inconsistent with such a construction.

In 1838, various restrictions on the appointment and action of administrators of estates of deceased soldiers or officers, “ other than a citizen soldier, who was a citizen of Texas, in the full exercise of his rights as such at the time of his death,” were enacted, impliedly recognizing the validity of administrations on the estates of soldiers, and of others not residents or citizens of the State. (Hart. Dig., arts. 984-990.) See also Hart. Dig., art. 269, which provides for the transfer of administrations theretofore pending before the primary courts to the Probate Courts where the deceased had his domicile at the time of his death, “ or, if he had no fixed domicile, then to the clerk of the Probate Court where the deceased died or *355where the majority of the property of the deceased is situated.” Taking these enactments into view, following what is believed to have been the contemporary and practical construction of the powers of the Probate Court, we hold, that that court had jurisdiction to grant letters on the estates of decedents who were not residents of the county at the time of their decease.

It is further urged that the petition for letters of administration shows that Davis was not dead, and that therefore the administration was void. The petition contained an averment that petitioner verily believed that Davis had departed this life, and was unquestionably sufficient to admit of proof of his death. Although it may appear that the petitioner, when his petition was filed, had no positive information of the death of Davis, it must be presumed that the court did not act without being satisfied of the fact. The validity of the administration certainly depends on the fact of death, but it does not depend on the positive knowledge of the petitioner of that fact. It is true that the petition states a case in which the court might have declined to act, but it must be presumed that inquiry was made, and that it was found that the belief of the petitioner was well grounded. It would be most unsafe to make the validity of the administration depend on the sufficiency of the petition, conducted, as administrations often were in tins State, without legal advice; and we are of opinion that the transcript of the proceedings of the Probate Court of Washington county does not disclose any want of jurisdiction in that court.

Humorous objections were made to the validity of the order of sale of the certificate, some of which may be disposed of by the remark, that the certificate was not real estate, but was subject to be sold, as other personal property. (Cox v. Bray, 28 Tex., 260.) The validity of the order of sale did not depend on the regularity of the bond, or the appearance, in the record of compliance with all of the regulations prescribed in the Civil Code of Louisiana. The courts of Louisi*356ana, like the courts of Texas, hold that a bona fide purchaser is protected by the decree of a court which has jurisdiction. They hold also that the decree of sale would not be an absolute nullity by reason of the omission to appoint an attorney to represent absent heirs. (Gibson v. Foster, 2 La. Ann., 503; McCullough v. Minor, Id., 468; Succession of Wadsworth, Id., 966; Ball v. Ball, 15 La., 182; Rhodes v. Union Bank, 7 Rob., 63.)

The ordinance of January 22, 1839, (Hart. Dig., art. 983,) decreed “ that all proceedings relative to successions, matters of probate, et cetera, shall be regulated and governed agreeably to the principles and laws in similar cases in the State of Louisiana: Provided, That no judge shall act as administrator.” The meaning of this proviso is evidently the same as if the proviso read, “no judge shall receive letters of administration.” See Hart. Dig., art. 993, for a similar prohibition as to clerks. We see nothing in this proviso, nor in the act defining the time of administration and sheriff’s sale, conflicting with articles 2600 and 2601 of the Civil Code of the State of Louisiana, as it was in force in 1839 and 1840, as follows: “Art. 2600. The judicial sale of succession property is made by the judge or clerk of the court to which this jurisdiction is specially confided. Art. 2601. The adjudication made and recorded by the judge or clerk of a court, is a complete title to the purchaser, and need not be followed by an act passed before a notary.”

The conveyance, adjudication, or proces verbal, executed by the judge of probate to the purchaser, seems to be an effort to follow these articles of the Louisiana code. At the time of the sale, the act regulating the duties of Probate Courts, &c., (Hart. Dig., art. 995, et seq.,) had not yet gone into operation, as it had in the case of Hall v. Hall, 11 Tex., 550, in which a similar case was held invalid. As we understand the Louisiana civil code then in force, and the decisions of the Louisiana courts, such an instrument was the appropriate evidence of an administration sale, and, with the lights before *357us, we cannot hold that it was invalid. (Reynolds v. Rowley, 2 La. Ann., 891; Faulk v. Pinnell, 6 Rob., 26; Babin v. Winchester, 7 La., 460; Moore v. Louaillier, 2 La., 571.)

There seems to be a discrepancy in the date of the certificate as given in the patent, and the date of the certificate issued to the administrator of Davis. Tins discrepancy constituted no valid objection to the admission of the patent in evidence. As the patent had been made an exhibit to the petition, there could be no variance. It was a question of fact, not affecting the admissibility of the patent, whether, notwithstanding the discrepancy in the date of the certificate, the patent did not refer to the same certificate which was issued to the administrator of Davis.

Because the court erred in excluding the various instruments of evidence offered by plaintiff', the judgment is reversed and the cause remanded.

Rex'ersed and remanded.

[Associate Justice Moore did not sit in this case.]