76 Tex. 604 | Tex. | 1890
This case grows out of the administration of the estate of F. G. Franks, a partial history of which is given in the statement of the case of Wygal v. Myers, decided at the present term of the court, which need not be repeated. After B. D. King was appointed administrator cle bonis non, that is on June 1, 1888, he filed in the Probate Court an application for an order to sell 600 acres of land out of the J. C. Clark league to pay certain debts of the estate; and on the same day the heirs of Matt Woodlief, holding an unpaid judgment against the estate, formerly rendered in the District Court against the administrator Rust, also made application to sell the same land to pay their judgment. The administrator’s (King’s) application was to pay quite a number of debts, among which were the following:
A judgment in favor of Matt Woodlief, of date August 11, 1875, rendered in the District Court of Wharton County against Rust, the former administrator, for $1218.28 and interest.
A judgment in favor of C. R. Johns & Co., rendered by the same court against Rust, the administrator, of dace December 10,1874, for $458 and interest.
An open account in favor of W. J. Claton for $69.50, allowed Febru
An open account of B. Odom for $81.90, allowed by Rust, the administrator, on the 30th day of March, 1875, and approved by the district clerk of Wharton County on the same day as a claim of the sixth class.
Appellants, claiming to have bought of the heirs of Franks all their interest in the estate, appeared in answer to the applications and objected to the granting of the order to sell the land, because the claims for the payment of which the sale was asked were stale demands and barred by the statute of limitations. The County Probate Court disapproved all the claims except that of Odom, and refused to order the sale. There was an appeal to the District Court, where the four claims mentioned were approved and classified and the 600 acres of land ordered sold to pay the same. Contestant appealed.
Questions as to limitation against the two judgments and the necessity of having them filed and classified in the Probate Court have been decided adversely to appellants in the case of Wygal v. Meyers, already referred to.
As to the claim of B. Odom, it was not affected by limitation. Under the Act of 1870 (sec. 192; Pasch. Dig., art. 5660) it was provided that at each term of the court all claims which had been “ allowed and filed should be examined and approved or disapproved by an order duly entered;” and in another section (197) of the same act it was provided that the order of approval of a claim had the force and effect of a judgment.
By the Act of May 27, 1873, the clerks of the District Courts were authorized to approve and disapprove claims against an estate in vacation. Odom’s account was, as we have seen, then duly allowed and approved, though the order of approval by the clerk was not spread upon the record as seems to be required in the latter part of the section cited. The approval was endorsed on the account, and we think this was sufficient to establish the account as a just claim, against the estate so as to stop the running of the statute of limitations during the pendency of the administration, the entry in the minutes being a clerical requirement only.
The account of Olaton does not rest on the same facts. It was not approved until in 1889, in the District Court in this proceeding, after it had been declared barred by the county judge. It was not established then until after it was barred. The order of approval was necessary to establish it as a claim against the estate and to put it on a footing of a judgment. Hence we must hold that the statute of limitations pleaded to this account ought to have been sustained.
We conclude that the judgment of the court below adjudging that the judgments in favor of Woodlief and C. R. Johns & Co. and the Odom account were valid and subsisting claims against the estate and ordering the sale of the 600 acres of land should be affirmed, but reversed as to
Under these circumstances, and considering the fact that the judgment of the court below is in the main affirmed, we conclude that the costs of this appeal should be paid by the appellants.
Affirmed.
Adopted March 25, 1890.
