ON REHEARING. J.B. Lee and others instituted suit in the District Court of Bexar County, against Charlotte T. Jones et al., to recover an undivided half-interest in a league and labor of land in Frio County, and for partition. The case was tried before the court without a jury, and judgment was entered for the plaintiffs, from which the defendants appealed to the Supreme Court. The cause was by this court transferred to the Court of Civil Appeals for the Third Supreme Judicial District. The Court of Civil Appeals affirmed the judgment of the District Court. Jones et al. applied to this court for a writ of error to the Court of Civil Appeals, which was granted, and upon hearing the judgments of the District Court and the Court of Civil Appeals were reversed and the case remanded. Lee and others filed a motion for rehearing, which is now under consideration.
The facts deemed necessary to an understanding of the questions involved in this motion are as follows: Certificate number 489 was issued to Pedro Flores Morales, and by him transferred to J.W. Smith, in about 1838, who transferred an undivided half of the certificate to Enoch Jones, and thereafter, in the lifetime of Smith, the certificate was by Jones and Smith located on the land in controversy. Smith died in the year 1845, and his widow, having married J.B. Lee, was in 1847 appointed by the Probate Court of Bexar County administratrix of the estate of Smith. Smith left a number of heirs and a considerable indebtedness.
It appears that Smith and Jones were joint owners of a league and labor, perhaps four surveys, in Comal County, granted in the name of Baron de Bastrop, which was in litigation, and in order to secure the land in case of failure of that title, Jones and Mrs. Lee, as administratrix of the estate of Smith, abandoned the location of the Morales certificate, made in the lifetime of Smith, on the land in controversy, floated the Morales certificate, and located it on a league and labor of the Baron de Bastrop land in Comal County. The date of this location and the abandonment of the former location do not appear, but it occurred after the death of Smith, and before the _____ day of May, 1852. Mrs. Lee continued as administratrix of the estate until 1856.
In the year 1852 Mrs. Lee, administratrix of Smith's estate, applied to *Page 48 the Probate Court of Bexar County for an order to sell the land in Comal County on which the Morales certificate was located, which was granted, and the land sold, Jones buying at said sale a part of the land. The sale was confirmed by the court, and Mrs. Lee, as administratrix, made a deed to Jones for the part purchased by him.
In the year 1854 one or more of the heirs of Smith filed an application in the Probate Court of Bexar County for the partition of the estate of Smith. Jones intervened in the suit, setting out certain tracts of land which he claimed to belong to himself and the estate jointly, and asked partition between himself and the estate, not mentioning, however, the land now in controversy. Mrs. Lee, as administratrix, filed an answer, under oath, in which she set out the lands which she claimed to be owned by Jones and the estate of Smith, which embraced the lands in Frio County located by the Morales certificate. The Probate Court found that the land belonged jointly and equally to Jones and the estate of Smith, and ordered that it be partitioned between them, which was done.
In the year 1856 some of the heirs of J.W. Smith filed a suit in the District Court of Bexar County against M.J. Lee, administratrix of the estate of Smith, and the other heirs of Smith, and against Enoch Jones, for a partition of the property belonging in common to the estate of Smith and Jones, and for a partition of the estate of said Smith among the heirs. The petition set up the land in Frio County located by virtue of the Morales certificate number 489, as property of Jones and the estate. Jones filed an answer, consenting that the partition made by the Probate Court of Bexar County be confirmed. Mrs. Lee filed an answer, under oath, setting out the lands which belonged to the estate of Smith and those that belonged to the estate and Jones jointly. The court appointed auditors to ascertain what land belonged to the estate of Smith and Jones, who reported to the court that the lands in Frio County, on the Rio Frio, located under the Pedro Flores Morales certificate number 489, belonged to the said estate and Jones. The court confirmed the partition made by the Probate Court of Bexar County.
In the year 1861 Enoch Jones made affidavit that he was the owner of certificate number 489, and on his application a duplicate thereof was issued to him by the Commissioner of the General Land Office, which he caused to be relocated on the surveys in Frio County upon which it was first located. Patents issued in the name of Pedro Flores Morales. Jones died before the institution of this suit, and plaintiffs in error in this court are his heirs and assigns of such heirs. The defendants in error are the heirs of J.W. Smith and Mrs. Lee, who was his wife at the date of his death.
The principal question to be determined on this motion is, did Mrs. Lee, as administratrix, have authority under the law to abandon the location *Page 49 of the Morales certificate made by Jones and Smith? If she had such authority, then the certificate was thereby detached from the land, and when located in Comal County was merged in that land, which last tract being sold to Jones under order of the Probate Court, the right of Smith's estate in the certificate was vested in him in the proportion that the quantity of land purchased bore to the whole. Being the owner of the certificate, the relocation would vest title in Jones to the same extent that he owned the certificate. In this event, the right of Jones in the Frio County land terminated before the proceedings in the Probate Court of Bexar County were had, and before proceedings were commenced in the District Court; hence neither of those judgments could have affected the title afterwards acquired by Jones by relocating the certificate, and the motion for a rehearing ought to be overruled. If, however, Mrs. Lee, as administratrix of the estate of J.W. Smith, had not the authority to abandon the location made by Smith and Jones, and to float the certificate, then the certificate was not detached from the land in Frio County, but remained merged therein, and could not be located upon the land in Comal County at the same time; in which event the sale of the land to Jones did not vest in him the right of the estate of Smith in the certificate. The relocation of the certificate by Jones enured to the benefit of the estate of Smith; and the rehearing should be granted.
Jones being a tenant in common with the estate of Smith, could not abandon the location and float the certificate without the consent of his cotenant. Johns v. Pace, 26 Tex. 272 [26 Tex. 272]. If the representatives of the tenant in common, Mrs. Lee, the administratrix, had not authority to give consent, it would have the same legal effect as if the consent had not been given.
When the Morales certificate was located by Jones and Smith on the land in Frio County, each became entitled to an undivided half-interest in that land; the certificate became merged into the land; it became real estate. Pasch. Dig., art. 5303; Sherwood v. Fleming, 25 Texas Supp., 408. Upon Smith's death his right descended to and vested in his heirs.
To provide for administration and to define the rights of the administrator, the article quoted (article 1373, Paschal's Digest) further provides: "But upon the issuance of letters testamentary and of administration on any such estate, the executor or administrator shall have the right to the possession of the estate as it existed at the death of the testator or intestate, with the exception aforesaid [the exempted property], and it shall be his duty to recover and hold possession of such estate in trust, to be disposed of under the provisions of this act." Thus the law clearly defined the character in which the administrator was to hold the estate (that is, as trustee), and also defined and limited the power of disposition of such estate to the purposes and methods prescribed by law. *Page 50
Article 1329 of Paschal's Digest provided for the care of the estate in the hands of an administrator, and enjoined upon him that degree of diligence, that degree of care, that a prudent man would exercise in preserving his own property. But this does not confer such power of disposition as a prudent man would exercise over his own property. It enjoined a duty, but confers no power.
When Mrs. Lee was appointed administratrix of the estate of J.W. Smith she took the estate as it existed; that is, the Morales location was real estate. She took it as a trustee, not as owner. It was her duty to recover and hold possession of it; not to abandon it or to convert it into a different kind of estate. She had the power to dispose of it under the provisions of the law, that is, for the purposes and in the manner prescribed by law, and not according to her own judgment of what was to the interest of the estate. It is pertinent to inquire under what article of the statute or provision of the law she exercised the power to abandon this location made by her intestate, thus, in effect, exchanging land that he had acquired for that which she deemed more valuable.
The law carefully prescribed the purposes for which land might be disposed of by an administratrix, and the method of its disposition. The payment of the debts due from the estate and the expenses of administration could be made by sale of the land, but it must be upon a proper showing, and by authority of the Probate Court; the administratrix could not turn it over to the creditor in payment of his debt, no matter how advantageous such a settlement might be. If the intestate had contracted to convey the land, the administratrix could not comply with the contract without an order of the court, no matter how undisputed the right. If the necessities of the widow and the minor children demanded that provision be made for their support, no matter how urgent the necessity, the administratrix must procure the order of the court before the land could be sold to raise the amount or turned over to them. When the purposes of the administration were accomplished, the administrator could not deliver the estate to the heirs, no matter if there was no contest; he must apply to the court for an order for that purpose. In every instance, the land must be disposed of under the provisions of the law. No discretion was given to the administratrix; she was a trustee with limited powers. We find no law that authorized nor decision that has sanctioned such a disposition of the land of an estate as was attempted in this case.
Poor v. Boyce, 12 Tex. 440, is quoted as authority to sustain the action of Mrs. Lee in abandoning the location made by her intestate, but the inapplicability of that case to the facts of this is so clearly demonstrated in the opinion of Chief Justice Stayton that the argument will not be reproduced.
It is claimed that the evidence does not show that the land was surveyed and the held notes returned to the General Land Office within the *Page 51 time prescribed by the Act of February 10, 1852, and that the location was forfeited, and that the title of Jones to that land had ceased to exist at the time of the partition in the Probate Court and when the judgment was entered in the District Court, and that the conclusion of the courts, that the matter was res adjudicata, was erroneous. It is undoubtedly true, that if the land was not surveyed and the field notes returned to the Land Office within the time prescribed by that act, the location was forfeited; and Jones claiming title at that time under no other source, these judgments did not affect his after-acquired title, and were not conclusive of his right. In the view taken of the other questions, this becomes immaterial in determining our action upon this motion. Conceding that the land was forfeited as claimed, the effect was that the certificate was by operation of law detached from the land, but the right to the certificate remained in Jones and the estate of Smith, as before. The forfeiture could not have occurred until after Jones purchased the Comal County land, and the subsequent forfeiture of the former location could not have the effect to confer title to the certificate upon Jones. It being the joint property of himself and the estate of Smith, the relocation of the certificate by Jones enured to the benefit of Smith's estate, and the land acquired became the joint property of the estate and Jones.
We conclude that Mrs. Lee, as administratrix of the estate of J.W. Smith, had no authority to abandon the location of the Morales certificate on the land in controversy, and that the certificate remained the joint property of Jones and Smith when relocated, and that the plaintiffs in the court below are entitled to recover one-half of the land, and to have partition of it. It is therefore ordered that a rehearing be granted, and that the judgments of the Court of Civil Appeals and the District Court be affirmed.
Affirmed.
Delivered June 19, 1893.