11 Tex. 157 | Tex. | 1853
This suit was brought to recover the value of the plaintiff’s services in a suit against the estate of the defendants’ intestate, on a verbal contract, made by and between the plaintiff and the administrators, the defendants in this suit.
There was a demurrer to the plaintiff’s petition, which seems to have not been acted upon by the Court; and there was a trial, and verdict for the plaintiff; a new trial awarded on motion of the defendants; and at the next Term, the defendants insisted on the demurrer, and the Court adjudicated on, and sustained it. The appellant has assigned two objections to the judgment sustaining the demurrer. The first is, that it was error to consider of the demurrer, as, a trial having been had without defendants asking the judgment of the Court, it amounts to a waiver of the same. The second is error in sustaining the demurrer. If we were called upon to revise a judgment rendered upon the verdict in this case, had it not been set aside, we would have held, no notice of the demurrer being taken, that the parties going to trial was a waiver, on the part of the party demurring. (Mims v. Mitchell, 1 Tex.
But, if the opinion of the Court, on the demurrer, is correct, it is of little consequence as to what disposition was made of the demurrer; as, if it had been passed over again, and waived on the trial, it could have been available in arrest of judgment, or on error assigned in this Court, as it went to the whole right of action; and this brings us to the second assignment of error, and to the consideration, whether the plaintiff showed, in his petition, any right of action.
As a general proposition, it is not controverted, that, at Common Law, an administrator cannot create a debt against the estate of an intestate, by his own contract; but this proposition, on an investigation, upon principle, will be found to be more technical than true in point of fact. At Common Law, the legal right to the personalty vested in the administrator; but, in a settlement of the estate, he was allowed compensation for all reasonable expenses and services, incurred or rendered, for the benefit of the property of the estate; and, as these expenses were incurred or services rendered, it became a debt due him from the estate, or there could be no foundation for allowing him reimbursement. Therefore, he in truth created the debt; and this debt he could pay to himself, out of the assets in his hands. With us, according to the decisions of this Court, the legal title does not vest in him, at all, but is vested in the heir, incumbered with the debts of the estate. Therefore, when he sued for property or defended when sued, it was, at Common Law, in his own legal right, but under our system of jurisprudence, he would not sue or defend in his own right, but merely as an agent, constituted by law, for the benefit of creditors and the protection of the rights of the heir. When, therefore, he contracts for anything necessary to these ends, he contracts as such agent.
The next Article cited, provides, “ that the rights, powers “ and duties of executors and administrators shall be governed by the principles of the Common Law, where the same “ do not conflict with the provisions of this Act.” We do not believe that this provision militates against the views we have taken; because, as we have seen, by the laws of this forum, the administrator does not sue in his own right, but as an agent, and as agent, it would follow that he can bind his principal for whatever is reasonable and necessary in the execution of his agency.
We have not thought it necessary to notice the Common Law authorities referred to, because they were cited in support of a proposition, admitted to be, in general, true, at Common Law.
It will be seen from the record, that when this case was first tried in the Court below, the Court charged the jury, that if
Reversed and remanded.