Werbiskie v. McManus

31 Tex. 116 | Tex. | 1868

Morrill, C. J.

— The first question for our adjudication arises on the proceedings of the district court, as presented by the following bill of exceptions, viz: “On the trial of the plea in abatement, filed on the-day of-, 1866, for incapacity of the plaintiff herein to sue, the following facts are given in evidence before the judge, a jury being waived by the parties. The plaintiff, on Iris part, proved that by an order in the minutes of the county court of this county, on the-day of-, 1866, he was appointed administrator, with the will annexed, of the estate of A. McMillen, deceased, and had given bond and security under said appointment and'taken .the oath required by law.”

The defendant, on his part, proved by Stark, clerk of the county court of this county, that the plaintiff had never taken out letters of administration on the estate of the deceased, for the reason that witness was not authorized, under the internal-revenue law of the United States, to impart them to the plaintiff, he, the plaintiff, never having paid the stamp duty upon the appraised and sworn value of the estate, which, by the inventory and appraisement thereof, duly returned to the court, amounts to the sum of -dollars. Upon which premises the defendant moved the court to adjudge the issue upon the said plea in his favor, and for judgment accordingly; but the court, in lieu thereof, adjudged the issue in favor "of the plaintiff, and gave judgment in this behalf -accordingly, to which ruling of the court, &c., &c.

The statute (Paschal’s Dig., Art. 1286) provides: “ Whenever an executor or administrator has been* qualified in the manner required in this act, it shall be the duty of the clerk to make out and deliver to such executor or administrator letters testamentary or of administration, as the case may be, which letters shall be signed by the chief justice and attested by the clerk with his signature and the seal of the court, and either said letters, or a certificate of the clerk, with the seal of the court affixed, that such letters have been issued, shall be sufficient evidence of the appointment and qualification of an executor or administrator whenever it shall be necessary to make proof thereof.”

It will be perceived that the statute is direct and positive as to the requirements of a supposed administrator, when his authority as such is called into question. He must either produce his commission to act as administrator, signed and sealed by the proper authorities, or a certificate of the clerk, with the seal of the court affixed, that such letters have been issued. The order of the court making the appointment, and the execution of a bond, and the taking the oath, do not make a person executor or administrator of an estate. After all this was done, the court might very properly refuse to grant letters of administration, either because the court might not be satisfied with the mental or moral capacity of the applicant or with the offered bond. Until the actual issuance of the commission, as required by the statute, the applicant was not administrator.

But we go one step further. Even if the letters of administration had been issued and lost or misplaced, the proper and only legal evidence of this fact, as required by the statute before quoted, would be “ a certificate of the clerk, with the seal of the court affixed, that such letters had been issued.”

In Styles v. Gray, 10 Tex., 505, the court said: “ The defendant offered the proof by reading from the record-book of the county clerk. The law makes no provision for the original books of record of another court being read as evidence, but provides for certified copies.” How much more necessary is it to comply with the fixed requirements of the law, from the fact that the administrator may have been displaced, or other reasons that can be supposed in the case under consideration, than in the case of Styles v. Gray, is perfectly obvious.

But there is another reason equally valid as the above, which shows the erroneous decision of the district judge. By the acts of Congress (internal revenue act of March, 1867, p. 129,) it is provided that there shall be paid, as stamp duties on letters of administration, where the estate or effects for ancl in respect of which such letters of administration applied for shall be sworn or declared not to exceed the value of $2,000, $1. It is further provided, that on all documents required to be stamped the stamp of the required amount shall be placed adhesively upon the same and canceled, under penalty of a certain amount, besides rendering null and void and invalid the document not so stamped. Hence,had the letters of administrationbeenproperlysigned, sealed, and issued, to the plaintiff in this case, they could not legally have been offered as testimony, unless they also showed that the revenue due to the United States had been paid, as evidenced by the proper canceled stamp. Another exception taken to the proceedings of the district court was, that the judge erred in ruling out the account of defendant, pleaded in set-off the money items therein.

This court has invariably decided that the best testimony that is within the power of the parties to procure, by ordinary or extraordinary means, shall be exhausted before the books of a party shall be given in evidence, and also that, besides the oath of the party touching the correctness of the same,- it shall be proved by others, who are acquainted with the character of the party among his neighbors and customers for fair dealing, that his reputation as an honest man and correct book-keeper is untarnished. The defendant complied with these conditions, and we can see no good reasons why the account entire was refused. The jury should in all such cases have been instructed that it was left with them to decide how far and to what extent the account was correct. It is believed that in most instances a jury under such circumstances will do justice between parties, and that they will discriminate between the accounts of men accordingly as their characters for honesty or otherwise may be proved or personally known to them. The judgment is reversed, and the cause

Remanded.