ON REHEARING.
Watts, J. Com. App.From occurrences over which neither counsel nor the court had any control, this appeal has been greatly delayed and counsel embarrassed in securing anything like a complete record of the proceedings had in the court below. It appears that the original transcript was destroyed by fire January 13, 1882, and that the greater portion of the original papers in the court below seem to have been destroyed also by fire, before another transcript had been prepared. As might have been expected under such circumstances, the record in many particulars is so incomplete as to render it doubtful as to what did really occur upon the trial below.
Ordinarily the presumption of regularity in the proceedings will be indulged, and the burden rest upon whoever asserts the contrary to point out the irregularity and show it by the record. Upon him devolves the duty of securing a complete record of the proceedings had below, and having the same filed in this court, and generally no intendment will be indulged in his favor in supplying defects in the record.
But in a case like this the court will indulge in liberal intendment, so that the ends of substantial justice may be attained.
It is claimed by appellant that the exceptions sustained to the petition in the court below amounted to nothing more than a general demurrer, and that in reviewing that ruling it should be considered in the same light as if a general demurrer only had been interposed to the petition and sustained by the court.
This is an action by a creditor of the estate of D. 0. Warren, deceased, upon the bond of the former administrator of the estate for a devastavit. It is alleged that the administrator qualified in March, 1869, and died in 1873. While there are several breaches of the bond alleged, the respective dates at which such breaches occurred are not stated.
Under the probate act of 1848 (Pasch. Dig., arts. 1374, 1375 and 1376), it is conceded that a creditor might maintain such an action fora devastavit. But appellee claims that the probate act of August 15, 1870, which repealed the act of 1848, gives full power to the administrator de'lonis non to maintain suits against his predecessor individually or on his bond, not only for the unadministered assets, but *318for a devastavit, and impliedly inhibits such suits by the creditor of the estate.
While appellant contests that proposition, yet she claims that if it should be conceded, that nevertheless the repealing clause of the act of 1870 saved the action to her by the proviso: “That no remedy to which a creditor is entitled under the provisions of the laws heretofore in force shall be impaired bj' this act.” Pasch. Dig., 5771. And that notwithstanding there are no allegations in her pet.lion fixing the breaches of the bond at a time prior to the passage of the act of 1870, nevertheless, as the exceptions sustained to the petition amounted in legal contemplation to a general demurrer, “ that if in any possible aspect of the plea a case is stated,” then the general demurrer ought to have been overruled.
Such is not the rule as we understand it. In Williams v. Warned, 28 Tex., G12, it is said that “The legal effect of a general demurrer is to admit the facts pleaded to be true, but to denjr that they constitute a cause of action or ground of defense. And the only question which will be considered under it is, whether any cause of action or ground of defense is disclosed in the pleadings demurred to. Consequently, if sufficient be stated to enable the court to see that a good cause of action or ground of defense exists, however defectively stated, the insufficiency or defectiveness of the averments cannot be taken advantage of on general demurrer.”
The rule here announced is strictly in harmony with previous decisions of this court, and is abundantly sustained by text-writers.
How, by applying this rule to the case which appellant claims is made by the record, it will be seen that even a general demurrer ought to have been sustained to the petition, upon the theory of the case now under consideration.
Observe that, by this rule, to authorize the overruling of the general demurrer, sufficient matter must be slated to enable the court to see that a good cause of action exists. It is not, as contended, that sufficient matter must be stated to enable the court to see that by possibility a cause of action might exist. But the rule is imperative that the allegations must be such as to enable the court to see that a good cause of action does exist
Here it appears that W. II. Warren was acting as the administrator of the estate of D, O. Warren about four years and six months; that one year and a half of that time was prior, and the other three years subsequent, to the passage of the act of 1870. Then, assuming that a creditor could not maintain such suit under the latter act, the breaches of the bond are alleged to have occurred some time *319during the four years and six months in which W. H. Warren was the acting administrator of the estate. Certainly from these allegations the court could not say that a good cause of action did exist. All that could be determined by the court is, that possibly the breaches complained of may have occurred before August 15, 1870, and if that is true, then a cause of action exists; but that the breaches did occur prior to that time is certainly not shown by the allegations in the petition. Here it is not an informal or defective allegation which will be aided by intendment, but it is the absence of an allegation which is necessary to constitute a cause of action against the appellees.
But it is claimed that a more liberal practice is prescribed by rule 17, which provides that, “in passing upon such general exceptions, every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency.”
The application of that rule to the petition, however, would be as unavailing to appellant as the other. It is only the reasonable intendments that will be indulged in favor of the pleading. Here the breaches occurred some time between March, 1869, and say, August, 1873. How, under the allegations of the petition, there is no reasonable intendment existing that these breaches occurred prior to the 15th day of August, 1870. There does not seem to have been any effort made to secure the removal of W. II. Warren for maladministration, and that might have been done at any time by establishing these alleged breaches of bis bond. His qualification as administrator was in March, 1869. Following the ordinary course of administration, money arising from the sale of lands made to pay debts would not likely come into his hands before August 15, 1870. Besides, two-thirds of the time covered by the administration, and in which the breaches might have occurred, was subsequent to that date.
¡Recurring to the original proposition, it should be observed that the court does not agree with counsel that the exceptions to the petition passed upon and sustained by the court below amount only, in legal effect, to a general demurrer. Besides a formal general demurrer, the following was among other exceptions interposed by appellees:
“ And for special exception thereto they say that there is an administrator de bonis non upon the estate of said D. 0. Warren, and was at the time of the institution of this suit, to whom and to whose suit they are liable upon their said bond, if at all, and not to this plaintiff.”
*320This is not a general exception which only in a general way challenges the sufficiency of the petition; it goes beyond that, and points out specially wherein the suit should not be maintained, as instituted, Tested by the law in force at the time the suit was brought, according to the theory upon which we are now proceeding, this special exception was well taken. Now, if any special reason or fact existed which would exempt this case from the operation of the exception, certainly it was incumbent upon the appellant to allege it. To give a practical illustration of this doctrine: Suppose that appellant had, by amendment, sought to avoid the effect of this exception, it would have been by alleging that the cause of action accrued before the passage of the act of August 15, 1870, if that had been the fact. Such an amendment would have been a complete answer to the exception.
Nor do we think that it admits of any doubt whatever but that this must be considered a special exception. Certainly it points out why the suit cannot be maintained by the appellant; states that there is an administrator de bonis non of the estate of D. 0. Warren, deceased, who alone has the capacity and right to maintain the action. Now if the facts existed which would authorize the amendment, the exception sufficiently indicated the defect in the case as presented by the petition to enable the appellant to supply the defect by appropriate allegations.
Appellant claims that the action might have been maintained under the provisions of the act of 1870. That is, there was nothing in that act which took from the creditor the right to maintain an action upon the bond of a former administrator for a devastavit, a right which was recognized and sanctioned by the common law.
By the terms of the act of 1870, the administrator de bonis non is required to “ account for all the estate which came into the hands of his predecessor; and shall be entitled to any order or remedy which the court has power to give, in order to enforce the delivery of the estate, and the liability of the sureties of his joredecessor for so •much as is not delivered.” P. D., art. 5738. It also provides that where a subsequent administrator “ proceeds against a former one and his sureties for neglect, he shall be entitled to recover the real damage only caused by such neglect.” Art. 5739.
It very clearly appears from these provisions that the administrator de bonis non could not only maintain an action upon the bond of his predecessor for unadministered effects or property belonging to the estate, but also the value of such as is not delivered. And in such action he is entitled to recover the actual or real dam*321age occasioned by the failure to deliver the property. That this statute authorized the suit by an administrator de bonis non upon the bond of his predecessor for a devastavit is too plain for controversy.
Then the question arises, that as the statute conferred this right of action upon the administrator de bonis non, would that negative the common law right of the creditor to maintain the action?
At common law, or, more properly speaking, in the English practice, the authority or commission of the administrator de bonis non only extended to the goods, chattels, rights and credits which belonged to the intestate at the time of his death, and which remained unadministered. Where property of the estate had been converted by the former administrator, that is, where a devastavit had occurred, the administrator de bonis non could not maintain any action against his predecessor, either individually or on his bond, for the devastavit, because after the conversion the property could no longer be considered unadministered assets of the estate. In short, the wastes committed by the former administrator of the property of the estate, as well as the conversion of such property by him, did not in any manner concern the administrator de bonis non, whose duty was only to secure and faithfully administer the unadministered assets of the estate. Potts v. Smith, 3 Rawle (Penn.), 366, and authorities cited; Beall v. New Mexico, 16 Wall., 510.
Hence, in the English practice, as the .administrator de bonis non could not maintain such suits, and in fact had no right to, or authority over, damages which might be recovered by others for such devastavit, no reason existed why the creditor could not maintain the action, and apply the recovery to his debt against the estate. For by so doing he in no way interfered with the administration; but would, on the contrary, aid the administration, by obtaining payment of his debt against the estate out of a fund that had passed beyond the reach of the administrator de bonis non.
However, under the act of 1870, the administrator de bonis non not only had the right to maintain the suit, but he was required to do so; and the discharge of that duty was regarded of such importance that he was by express enactment “ entitled to any order or remedy which the court has power to give,” to enforce the liability of the sureties of his predecessor.
All damages recovered, or which by reasonable diligence might have been recovered, by the administrator de bonis non, upon the bond of his predecessor, on account of a devastavit, are chargeable to him as unadministered assets, and his sureties are liable therefor.
*322This being true, and there being no authority conferred upon the creditor to maintain such suits by the act, no more reason is perceived for allowing him to interpose by suit, for the collection of this class of claims, than to collect any other character of claims due the estate. The authority to maintain such suit, when not otherwise limited by statute, imports the right to apply the recovery to the payment of his debt. Such a doctrine might, and perhaps would, result in endless confusion as well as loss both to creditors and the estate. It would necessarily result in a general scramble between creditors holding different classes of claims, perhaps, and the administrator de bonis non. For amongst the creditors, the first judgment, without regard to the class of the claim, would likely be the first paid; whereas the damages recoverable under that statute were assets in the hands of the administrator, which he was required to administer as other assets. In the discharge of the duty of the administrator de bonis non in regard to this particular matter, the creditor is amply secured by his bond. And besides, if he was derelict in the discharge of his duties as administrator, the creditor could have secured his removal.
In our opinion it was not the intention of the legislature that the creditor should be authorized to maintain such suits. FTor do we think the fact that the administrator de bonis non and the sureties on his predecessor’s bond had confederated together to defraud the estate would authorize the suit by the creditor. He is secured from loss by reason of such combination by the bond of the administrator, and his right to have him removed for maladministration.
Our conclusion is that the judgment ought to be affirmed.
Affirmed.
[Opinion adopted February 16, 1885.]