36 Tex. 111 | Tex. | 1872
This is an action on the official bond of James E. Armstrong, and his securities, to recover the amount of a legacy devised by the will of Bachel Yardeman. Armstrong was the administrator de bonis non, with the will annexed ; the money came into his hands, and he loaned it at interest on personal security. The securities have failed. The only question for our determination is—did Armstrong comply with the law-in loaning the money without taking real estate securities ?
It is claimed that, By the terms of the will of Mrs. Yardeman, Armstrong, if acting under the will, was not bound to require any other securities for the money than those which he took. Mrs. Yardeman nominated Irving Lawson to execute her will, and also appointed him testamentary guardian of the legatees; and it would seem that Armstrong, acting as the administrator de bonis non, may have considered that the special trusts provided in the will had devolved on him. In this, however, he was mistaken. He derived his power as administrator from the law, and not from the will, and had no power to act as testamentary guardian of the minor legatee. He should have been directed by the probate court. (See Tippett v. Mize, 30 Texas, 361.) The law regulating the duty of guardians is found in. Article 3906, Paschal’s Digest.
The facts were all agreed to in this case, and submitted to the court without a jury, and we think the judgment was erroneous, and must be reversed; and the plaintiff in error is entitled to a judgment for the amount of the legacy, and interest thereon at the rate of eight per cent, per annum, to be computed from the time the money is shown to have come into the hands of the administrator de bonis non.
Eeversed and rendered;.
