30 Tex. 382 | Tex. | 1867
The only question presented for our solution in this cause may be thus stated:
Is article 1307, Paschal’s Digest, a “statute of limitation” in the sense in which that term is used in section 6, ordinance 11, of the convention held in 1866? [Paschal’s Dig., Art. 4631a.]
A leading feature of the act pertaining to the estates of deceased persons is the manifest desire on the part of the legislature to hasten the final settlement of estates.
With this object in view, the administrator is required, so soon as he shall ascertain that it is necessary, to apply for an order to sell'property to pay debts of the estate. [Paschal’s Dig., Art. 1314, Rote 488.] He is further required, at the expiration of twelve months from the grant of his letters, to make an exhibit of the condition of the estate of his intestate. [Paschal’s Dig., 1343.]
At the third term thereafter it is his duty to make a similar exhibit; and from time to time such further exhibits of claims allowed or registered as may have been presented for his action. [Paschal’s Dig., 1345.] These re
We have made these quotations from the act (and others might be added) as evidence that a final settlement of an estate is one of the primary objects of the law.
On the part of the creditor, his claim must be presented within twelve months, or it will be “postponed” until the claims which have thus been presented and approved shall have been first entirely paid. [Paschal’s Dig., Art. 1307.]
Here we have an incentive, sufficient to encourage diligence, in aid of the general policy of the law-giver.
It will be observed that this article does not preclude the creditor from presenting his claim or “ civil action ” after the twelve months shall have expired. He may still have it allowed and approved as a valid claim against the estate, to be paid in due course of administration; and, if the estate should remain open so long, this right would remain unimpaired until the general limitation law would bar his recovery. But he would lose the reward of diligence by having his claim “ postponed ”—deferred—in behalf of the more active and enterprising creditor.
By statute of limitation, as used in section 6, ordinance 11, convention of 1866, it is intended to embrace'only those general laws of the state which deny rights of action, and may be interposed as an effectual bar to any recovery on the cause of action. [Paschal’s Dig., Art. 4631a.]
Article 1307, Paschal’s Digest, is not such a statute. Ho such extinguisher of the right of action will be available. Ho remedy is withheld. The right of action survives the limitation of twelve months, and, if the estate is solvent, all just demands will be paid.
There is apparent on the record such a variance between the pleadings and judgment as would enable us to dispose of the case without regard to the merits; but enough is disclosed to warrant us in awarding the judgment that ought to have been rendered below,
Reversed and remanded for observance.