McDonald v. Alford

Morrill, C. J.

Alford, as administrator de bonis non of the estate of George G. Alford, deceased, instituted suit in the District Court of the county of Houston, against J. H. Inman, a citizen of the county of Trinity, and S. McDonald, a citizen of the county of McLennan, for the double purpose of setting aside a decree or order of the County Court of Houston county, ordering the sale of two certificates of land scrip, Hos. 354 and 358 of the Toby scrip, as well as the order confirming the sale made at the May and July terms, 1850, which orders were made while the said Inman was administrator of said estate, and to recover of McDonald twelve hundred and eighty acres of land situate in the county of McLennan, conveyed and patented by virtue of the said Toby scrip, Nos. 354 and 358.

Exceptions were made to the proceedings and were overruled. The parties went to trial, and plaintiff recovered a verdict and judgment against McDonald for the land. The suit is brought before this court by appeal.

The first question that is presented relates to the sufficiency of the petition:

Eirst—Can an administrator de bonis non institute a suit in the District Court to vacate a decree of the County Court obtained by his predecessor %

Second—Can an administrator de bonis non unite in the same suit an action against his predecessor to set aside an order of the Comity Court, and an action of trespass, to try title against another party for lands situate in a county different from the one in which the suit is brought ?

Art. 1376 provides: ‘‘’When an administrator of an estate not administered, has been or shall be hereafter appointed, he shall succeed to all the rights, powers and duties of the former executor or administrator, except such rights and powers conferred on the former executor by the will of the testator as are different from those conferred by this act on executors generally : and such administrators shall have power to make themselves parties to all suits prosecuted by the former executor or administrator of the estate: they shall have power to settle with the former executor or administrator, and to receive and receipt for all such portion of the estate as remains in their hands; they shall have power to bring suit on the bond or bonds of the former executor in their own name, as administrator for all the estate that has not been accounted for by such former executor or administrator; and they shall proceed to administer such estate in like manner as if their administration ■was a continuation of the former executor or administrator, with the exceptions hereinbefore named,” etc.

This section of the act defines the powers and duties of an administrator of the estate not administered: and it is precisely what one would suppose it to be from the meaning of the words used in describing the officer. He is a successor of the former administrator, and he has no power or authority to attempt to impeach, set aside, or undo what his predecessor may have done, however irregular it may have been. The only way he can maintain a suit against the former administrator is a suit upon the bond of the former administrator to recover the property or estate that has not been accounted for by such former administrator.

Art. 1382 provides that “ any one interested in the estate of a deceased person, may at any time within two years after the settlement by the Chief Justice of any account of the executor or administrator of such estate, have the same revised and corrected by the District Court of the county in which the letters of such executor or administrator were granted, upon making-proof before such District Court that there was any error or fraud in sucli account or settlement: Provided, that he shall first obtain from the clerk of the court in which such account was settled, a transcript of all the papers relating to such account and settlement and file the same, with a petition, in the clerk’s office of said District Court, and cause such executor or administrator, or his legal representatives, to be cited as in other suits in said District Court.”

This article does not authorize the proceedings had in the case before the court, because the administrator, as such, is not interested in the estate: he is a mere agent, appointed by law to collect the personal property of the estate, and after having paid the debts thereof, to deliver the property to those interested.

But it is not necessary to wait till the close of an administration before irregularities or illegalities can be corrected or set aside. Art. 1384 provides that “ any person who may consider himself aggrieved by any decision, order, decree or judgment, shall have the right to appeal to the District Court of the county,” etc.

The views herein expressed will not be found to be inharmonious with the former adjudications of this court. In Murphy v. Menard, 11 Tex., 673, an administrator de bonis non brought suit against a former administrator to set aside the final settlement of his accounts as such administrator. In that case as in this, exceptions were taken to the capacity of the party plaintiff to institute suit. In that case, but not in this, the exceptions were sustained by the District Court. In that case the Supreme Court sustained the judgment of the District Court. In that case Judge Wheeler says: “ The administrator de bonis non could have no interest in the settlement of the account of a former administrator. This duty only extends to effects left unadministered, and his interest is in them alone. He is a mere trustee, is chargeable only in so far as he receives assets, and has no such interest in the estate as will enable him to maintain an action against a former administrator for maladministration, or as will authorize him to prosecute an appeal or other proceeding to have the acts of the former administrator revised and corrected.”

But were the heirs of the deceased intestate the party plaintiff herein, instead of the administrator de bonis non, the second question is, can this suit be blended with another for the recovery of land held adversely by a third party, whose residence as well as the land is in a different county from the one in which the suit is instituted %

It will be perceived that in an action to set aside a decree ' of the County or Probate Judge, the parties necessarily are those interested in the estate as plaintiff, and the administrator as defendant, or, in case of his death, his legal representatives (Art. 1382). This forms a suit of itself. There can be no other plaintiffs than those interested in the estate. There can be no other matter or thing in controversy than what was adjudicated in the County Court, and there can be no other defendant than the former administrator or his heirs. It might be convenient for a person who had several claims against different individuals—for instance, separate accounts against some; different and separate notes against some others; land suits against others living in separate and distinct and distant counties—to cite them all in one suit, and thus make a wholesale business of his collections and controversies, but the statutes of this State do not authorize the proceeding.

It is perfectly evident that the first, last and only object of this writ was the recovery of land situate in McLennan county, in possession of the appellant, as owner; and the judgment of the court is in compliance with the petition. But Art. 1423 provides that “ where the recovery of land is the object of a suit, the suit must be instituted where the land or a part thereof is situated.”

The judgment is reversed, and cause dismissed in both the District and this court, and the costs to be paid by defendant in error.

Reversed and dismissed.