Vogelsang v. Dougherty

| Tex. | Jul 1, 1877

Moore, Associate Justice.

This suit was brought, on the 11th day of September, 1873, by the appellee, W. W. Dougherty, in his own behalf, and as the agent for the other heirs of Burton M. Dougherty, to recover certain lands, situated in Colorado county, alleged to have been acquired by said Bm’ton M. Dougherty, by virtue of military services rendered the Republic of Texas, now in possession of and claimed by appellants, the defendants in the District Court, through and under, as plaintiffs aver, an illegal and unauthorized administration upon his estate by the Probate Court of said Colorado county.

Although some comment is made by appellees’ counsel upon the fact that no decree, confirming the sale of one of the tracts of land sued for, is found upon the minutes of the Probate Court, as it is evident, from the record, that the action was brought and tried in the court below, upon the hypothesis of the illegality of the administration, and not because of any defect or irregularity of the proceedings had in said court, in the course of said administration, however great, it is only necessary for us at present to inquire, whether the Prohate Court of Colorado county had authority to grant original administration upon the estate of Dougherty, as it did, in 1843, and letters de bonis non, in 1849, and whether it could confer upon the administrator last appointed, power and authority to sell the lands belonging to said estate.

The objection made to the validity of the administration, and the title of the parties claiming the land sued for under it, is, that the assumption of authority by the court to grant the administration, and order the sale of the lands belonging to the decedent, is in plain violation of the act of May 18, 1838, entitled “An act to provide for the settlement of deceased soldiers’ estates,” (Hart. Dig., arts. 984-8,) and that of January 14, 1841, entitled “An act to protect the heirs and next of Mn to the members of the Georgia battalion, and other volunteers from foreign countries, who have fallen in the battles of the Republic, or otherwise died in the limits of the same.”

It does not appear, from the record, and it was not attempted to be otherwise shown, that either of the parties to whom, at different times, letters of administration upon Dougherty’s estate were committed, were the next of Itin of the decedent, or that either of them produced, or had authority, from his heirs or next of kin, to take said administration on his estate. Hor can it be pretended that the court, in ordering the sale of said lands, attempted to conform its action to the provisions of said first-named act. If, therefore, decedent was of the class of persons to whose estates these acts have reference, it might, and probably should, be held, the grant of administration upon his estate by said court, and all the proceedings had therein, touching the same, were, as is insisted by appellees, absolutely null and void. But is it shown, by the record of the Probate Court, or otherwise, that Burton M. Dougherty was one of the persons to whose estates reference is had in these acts ?

It must he remembered,' that, by these acts, an exception is made to the general power and jurisdiction given to the Probate Court over the estates of deceased persons. And, as the court determined, as it must be presumed, correctly, until the contrary is shown, by the grant of .administration, that it had jurisdiction to render the judgment and make the orders in question, the burthen of proof is unquestionably upon him who asserts their nullity. And certainly, where the want of jurisdiction, and consequent nullity of the proceedings of the court,, is sought to be shown by parol, the proof should be clear and satisfactory to establish the alleged facts from which the conclusion is to be deduced. More especially must- this be so, where a considerable length of time has elapsed, after the proceedings are had, before they are called in question. In this case, the general jurisdiction, assumed by the Probate Court over this estate, is attempted to be collaterally impeached, thirty-one years after its assumption, and more than twenty-five years after one of tire plaintiffs, as he testifies, came to Texas to look after his brother’s estate, when, as we must presume, letters of administration, illegally granted upon it, if this action has any valid foundation, had been already issued.

At that time, it certainly could have been a matter of no great difficulty to have shown, if such was the fact, that the deceased was a “volunteer soldier, from foreign countries,” or whether he was a “ citizen soldier, in the full exercise of his rights as such at the time of his death.” (Hart. Dig., art. 989.) In view of these facts, if the evidence to support appellees’ claim was clear and satisfactory, it should have been held, we think, that appellees, having permitted the land to be bought and sold by innocent parties, who had no immediate connection with the administration, and having slept upon their rights until some of it had passed the second time through the Probate Court, their claim to it at this late day should be regarded and treated as a stale demand.

But if appellees delay in asserting their claim, justly subjected it to no unfavorable inference, it could not be held that the testimony is by any means satisfactory, to establish the essential facts which it is necessary for them to prove before they can question or impeach the grant of administration, and the order of the Probate Court for the sale of the land sued for. Indeed, the evidence in the record tends strongly, if not conclusively, to repel the truth of their alleged ground of complaint.

The act of 1841 was evidently intended for the protection of the estates of those noble and heroic volunteers from foreign countries, who, through love of liberty and sympathy for a brave and oppressed people, engaged in a seemingly unequal struggle to free themselves from, oppression and establish their independence, who had fallen in battle or otherwise died while engaged in the sacred cause for which they had volunteered. It is also obvious, from the amendatory act of December 24, 1838, that the act of May 18,1838, had no reference to administrations upon estates of soldiers who were citizens of Texas when they died. These laws were evidently intended to protect the heirs and next of tin, and to regulate administration upon estates of the soldiers to whom we have just referred. It was a sad and disgraceful fact, of general notoriety at the time these laws were enacted, and now a matter of historical knowdedge, that there was in our midst a few harpies, who, under color of administrations upon the estates of the brave men who had died in aiding the cause of a people of whom, politically, they formed no part, and to maintain a Government to which they owed no duty, were filching from then heirs the pittance given them by the Government, not as compensation for their services, but in token of its gratitude, and as a memorial of their heroism and valor. Under these circumstances, had not the Government interposed by suitable legislation for the protection of the rights and interests of the heirs and next of tin of those generous volunteers who had given their lives in its behalf, it would hqve shown itself unmindful of the pledges offered as an inducement for them to come to our aid, and wanting in gratitude for the services so nobly and generously rendered by them.

Great numbers, if not most of these volunteers, had, as was well known, died from disease, fallen in battle, or been foully butchered, while- unarmed prisoners. With rare exceptions, their heirs and next of kin were in a foreign country. They owed no debts to citizens of Texas, and owned no property here except the lands given them, by the Government. There was therefore no necessity for an atlministration here upon their estates, except where desired by then- heirs or next of kin. But in respect to citizens of the country, all of whom were soldiers, and none were soldiers who were not volunteers, it was altogether different, and it would have, as a general rule, been unnecessary, and most singular, to have excepted then’ estates from the general law of administration.

The evidence offered by appellees, to prove thatDougherty came to Texas as a volunteer is, at most, loose, vague, and indefinite. Hone of the witnesses knew Mm earlier than 1837. The fact that he had a bounty warrant, shows that he had been a soldier, but certainly does not prove that he was a volunteer soldier from a foreign country. The certificate for six hundred and forty acres, given Mm as a headlight, seems to indicate that he did not come to Texas as a volunteer soldier. At least, it is evident from it, that he did not do so prior to August 1, 1836;. for, if he had, he would have been entitled to a headlight for a third of a league, instead of six hundred and forty acres of land; and certainly, if he came to Texas as a volunteer soldier from a foreign country, he had ceased to be such volunteer soldier long before his death. He was living apparently as a citizen of Houston, in 1837, when we first hear of him in Texas. He removed, as early as 1838, to Colorado county, and resided there from that time until some time in 1841, in the full exercise, as far as is shown by the testimony, of all the rights of a citizen, rendering military service, no doubt, as other good citizens, by “ going out,” as the witness says, whenever there was a call for soldiers. He went, in 1841, upon what is commonly called the “ Santa Fe expedition; ” but if this was a military expedition, authorized by the Government, (which has not been shown,) there were certainly others than volunteer soldiers accompanying it; and the inference from the testimony is, that Dougherty was one of these.

But if the testimony was sufficient to sustain the verdict, still the judgment would have to be reversed, for errors in the charge of the court, and for refusing to give some, at least, of the instructions asked by appellants. The views of the law applicable to the case already expressed obviates the necessity of comment on this subject. We will only add, that in the first paragraph of the charge, the court instructed the jury, in effect, that the laws to which we have referred were applicable alike to all volunteer soldiers, whether they were citizens or from a foreign country. The verdict of the jury was not an unreasonable conclusion, from this view of the law.

Reversed and remanded.