dissenting.—In this case I am constrained to dissent from the opinion of my brother, Justice Caldwell, who has rendered the judgment, of the court.
In my view of the law, there are two errors in the opinion pronounced: First, there is no authority for the mode of proceeding by the appellant by petition to the district court and prayer for the writ of certiorari in a case like the present. I know of no statute which warrants it. Where the claims of creditors are presented to the administrator or executor, allowed by him, and approved by the chief justice, such allowance and approval cannot be appealed from or revised upon certiorari by the district court. If the allowance and approval of the claim of such creditor be erroneous, it must be set aside and nullified by an original proceeding, commenced in the district court for that purpose, showing that the claim could not legally have been allowed. But this requirement is applicable alone to claims presented to the administrator or executor, allowed by him, and approved by the chief justice. There is no statute authorizing a contestant of the claim of an administrator or executor to institute an original proceeding in the district court to set aside or nullify it by bringing up before the district court by certiorari, as was done in this case. (See 5 Tex., 487; 11 Tex., 116; 16 Tex., 186.) In the language of those decisions, it is a quasi judgment, from which an appeal must be taken to the district court, which proceeding is provided for in articles 1384 and 1383 Paschal’s Digest, p. 389. Article 1382 of the same Digest provides for a revision of the settlement of the administrator or executor of his account with the chief justice as admin*462istrator or executor, and has no application to the personal claim of such fiduciary against the estate. In this latter case, when fraud or error is charged in such settlement, any one interested may have a revision, by an original proceeding in the district court, by virtue of its ample powers and control over the inferior courts, and may order up the record by certiorari. But there is no authority in the statutes for such proceeding on the adjudication of a personal claim of the administrator or executor by the chief justice, which, it is admitted, is also a quasi judgment, and is such a decision, order, decree, or judgment, as can only be appealed from, so far as any provision is made by statute. Ho fraud or collusion between the administrator and the •chief justice is charged in the petition in the adjudication of this claim in favor of the administrator. If there be error in it, it is but an error of the judgment of the chief justice, which can only invoke the appellate power of the district court for its revision, and which is only provided for in the statutes by appeal. The power of carrying up cases from the county or probate courts by certiorari will be found, upon a careful examination of all the statutes, to be only employedin the exercise of its constitutional j urisdiction superintendence, and control over courts of inferior jurisdiction. It is here the district court derives its authority to issue writs of certiorari to the inferior tribunal, the probate court; and the statutes which declare the right of that court to issue such writs do not change the matter, so far as the probate court is concerned. There is express authority of statute for the issuance of such writs to the justices’ courts: But this cannot be said to be the exercise of appellate jurisdiction; because all such' cases are not revised, but tried de novo. Hence, I contend the error has been committed by the appellant in not seeking the redress of his grievance, if grievance it was, in the mode pointed out by the laws of the land.
Second, the assumption that the administrator is bound *463to make the affidavit to his personal claim against the estate, as is prescribed in the statute, ((Paschal’s Dig., Art. 1309, p. 312,) to other creditors, I am bound to consider as an error in the opinion delivered. The method of verifying and authenticating claims against decedents’ estates in Texas is entirely a creature of statutory law. Eights exist against dead men’s estates independent of any statute law whatever. And, if no statute provides a method for their enforcement, in countries where the common law is recognized those rights would be enforced according to the rules of the common law. And perhaps I need not say here that, in the absence of any statute establishing and fixing a mode, the common law is a rule of decision here. (Paschal’s Dig., Art. 978, p. 254.) What was the method of establishing claims against estates of decedents by the unwritten law ? It was by suit against the personal representative, and the production of proof to show the justice of the demand, which might be rebutted or avoided by appropriate defenses, or if a claim of the administrator, he retained in his hands for satisfaction of his demand. The statute of Texas (Paschal’s Dig., Art. 1309, p. 312) prescribes a general method of verifying and authenticating such claims by creditors, and thus supersedes the common law method. Its language is general. If this was all of the statutes upon the subject, no doubt, from its generality, administrators and executors would be included in its requirements. But Article 1394, Paschal’s Digest, p. 341, excludes the idea, by a positive declaration, that the provisions of the act respecting the presentation of claims shall be construed to apply to the claim of an executor or administrator. Tet the opinion does so construe the act, and thus renders this subsequent article of none effect, or at least of but partial effect, when the article itself says that the presentation act shall not apply at all. This article 1394.prescribes the mode, and that is the only statutory mode in which an adminis- . trator or executor can establish his claim: by filing it in the *464court from which his letters emanated, on or before the sixth term after the grant of his letters, and the chief justice, at that or at some subsequent term, may hear all legal evidence in support of it; and, if satisfied of its justice, he must enter on the minutes of the court his approval, and that it is to be paid in due course of administration, unless, within three months after such approval, some person interested in the estate shall take an appeal from such approval to the district court. Here again, in confirmation of the view above presented, the law provides, that the error of the chief justice, if error there be in such decision and allowance, is to be corrected by an appeal to the district court. I deem it important that all these distinctions in the law should be observed and acted upon, to obviate the interminable confusion into which judicial administration is but too prone to tend under all circumstances. I cannot therefore concur in the opinion given by the court, for these two reasons, which, in justice to myself, I deemed it necessary to present, perhaps too concisely to impart a clear apprehension of my view of the question.