On May. 23, 1929, G. W. Luttrell and wife, A. L. Luttrell, executed and delivered to Federal Mortgage Company two promis
On November 6, 1930, G. W. Luttrell died intestate, and,- in August, 1932, his widow, Mrs. A. L. Luttrell, was, by the Probate Court of Dallas County, Texas, duly appointed administratrix of his estate, qualified and continued to act as such administratrix until her death on December 15, 1934, when appellant, Thomas G. Burke, was duly appointed administrator de bonis non and immediately thereafter qualified as such by taking the oath and giving bond as required by law.
On January 31, 1939, -the Guilford Mortgage Company presented its claim to Administrator Burke for allowance, expressly designating it as a preferred debt and lien against the specific property described in the aforesaid deed of trust, and be paid-according to the terms of the contract securing the indebtedness. The claim is based upon the unpaid principal of $4,408.55 of the aforesaid $5,000 note and the principal of the $982.50 note, which had been duly assigned to it, with interest, as therein provided, from October 30, 1931, and 10% of the total of said principal and interest as attorney’s fees; and further, for the sum of money advanced in payment of taxes and insurance in the sum of $689.05, with 6% interest as provided in the deed of trust. The administrator, Burke, rejected the claim on the ground that it was dormant under Art. 3522, R. S.1925, and also barred by the four-year statute of limitation, Art. 5527; resulting in the claimant, on March 17, 1939, instituting this suit in a district court of Dallas County, Texas, to establish the claim as a preferred debt and lien against the secured property and be paid by the administrator, in accordance with the terms of the notes and deed of trust.
The cause was tried to a jury and at the conclusion of the testimony, the trial court peremptorily instructed a verdict in favor of the claimant, Guilford Mortgage Company, for the principal sum of $4,408.-55, with interest at the rate of 9.3% from October 30, 1931, with 10% of the principal and interest as attorney’s fees, and for the sum of $689.05, money advanced for insurance and taxes, with 6% interest thereon from January 1, 1937. Accordingly, the trial court entered judgment establishing the claim a-s a valid debt against the estate of G. W. Luttrell, computed at $8,868.05, as being the amount, principal, interest and attorney’s fees, due and owing on the notes; and $689.05 as being the amount of premiums and taxes paid, with interest; and that the deed of trust a valid and subsisting lien on the specific property described therein, to secure the note indebtedness and the taxes advanced in the sum of $512.86; and that the insurance premiums, in the sum of $266.51, be a. valid, unsecured debt against the estate of G. W. Luttrell to be paid in due course of administration.
The primary question involved in this appeal is, whether the administrator de bonis non was justified in rejecting ap-pellee’s claim on the ground that it was dormant, in that the claimant had failed to institute suit against Mrs. A. L. Lut-trell, administratrix of the estate, within ninety days after she had rejected the claim in 1932; to establish the debt and lien as a matured claim against the estate of G. W. Luttrell in a court of competent jurisdiction as required by Art. 3522; and further, on the ground that in 1932 the claimant having exercised the option to accelerate the maturity of said note in default of payment of installments, as hereinafter related, the notes were barred by the four-year statute of limitation, Art. 5527.
The evidence is uncontroverted:
On or about August 17, 1932, there was presented to Mrs. A. L. Luttrell, the then administratrix of the estate of G. W. Lút-trell, deceased, a secured claim in the sum of $5,241.99 evidencing the amount due to Guilford Mortgage Company by reason of the unpaid principal, interest and attorney’s fees, of a note indebtedness of $5,000, and deed of trust executed by G. W. Luttrell and A. R. Luttrell, dated May 23, 1929, being the same indebtedness as was presented by the Guilford Mortgage Company to the administrator, Burke, on January 31, 1939, which is involved in this suit; except the added insurance premiums and taxes subsequently paid by the claimant. The claim shows on its face that' it was signed and sworn to by A. Y. Banks, President of Guilford Mortgage Company, before Margaret V. Collins, a notary public, Dallas County, Texas, and bears all the essential prerequisites for the claimant to exercise the statutory preference to have it classified, allowed and approved by the administratrix “as a matured secured claim to be paid in due course of administration,” as provided by Sub. (a), § 1, of Art. 3515a. The claim was drafted in the office of the Guilford'Mortgage Company, signed and ' sworn to by its ' President before the Company’s notary public, delivered to Mr. John F. Murphy, the general attorney for the Company, and soon thereafter presented to the administratrix, Mrs. A. L. Luttrell, by, a Mr. F. D. Reach, the outside collecting agent of the Guilford Mortgage Company. The claim shows on its face that -it had not been expressly approved or rejected by the ad-ministratrix, and there was no endorsement ' thereon or memorandum annexed thereto, as required by Art. 3516, R.S.
In consequence of the failure of the ad-ministratrix to approve or reject the claim as presented, the Guilford Mortgage Company, on October 3, 1933, instituted a suit in the Probate Court of Dallas County under Art. 3517, supra, asserting therein that it had an interest in the claim presented to the administratrix, and complaining of the administratrix’s failure to act thereon; and sought to have the adminis-tratrix removed and her letters of administration revoked because of such failure. -In response thereto, the administra-trix answered by general demurrer, general denial, and affirmatively sought to have the suit dismissed-for lack of merit. The record shows' that no áction was ever taken by the probate court on claimant’s suit.
Appellee contended in the court below, and urges here, that the evidence is insufficient to show that the claim of 1932 was ever authoritatively presented. Manifestly Reach’s authority is not shown by merely his acts or words, without further proof, to bind his Company (National Debenture Corporation v. Smith, Tex.Civ. App., 132 S.W.2d 429); and if that was the extent and weight of the proof offered, clearly it alone would be insufficient to show any authoritative presentment of the claim. We think that his act in delivering the claim to the administra*
As related above, the claim was prepared, in form, by Mr. John F. Murphy, general attorney for the Guilford Mortgage Company, since deceased; it was signed and sworn to by A. Y. Banks, President of the Company, before Miss Collins, a notary public, and delivered to Mr. Murphy. Miss Collins testified that to the best of her recollection; Mr. Murphy delivered the claim to one of the Company’s representatives, ■ an outside man,' for ■ delivery to the administrator, but she could not say definitely whether it was Mr. Reach, but in the usual course of business, she said, he. would have been the man to deliver the claim to Mrs; Luttrell, the administratrix. Mr. A. G. Luttrell, son of W. G. and A. L.. Luttrell, testified, that in August, 1932, shortly after the date (August 12, 1932) of the claim in question, he saw Mr. Reach deliver the claim to his mother, and thereafter his mother took the claim to her attorney, Mr. Burke. Mr. Burke testified that he had been Mrs. Luttrell’s attorney since her appointment in August, 1932, and that the claim in question was, on August 17, 1932, turned' over to him by the ad-ministratrix.- He was then asked: “Do you know whether or not Mrs. Luttrell ever executed any instrument in writing on defendant’s Exhibit 3 (the 1932 claim in question) or annexed thereto any memorandum in writing, allowing that claim ? A. I know she did not.”
The evidence further shows that on August 3, 1933, the Guilford Mortgage Company, by John F. Murphy, its attorney, filed in the. Probate Court of Dallas County, Texas, in cause No.. 13704, Estate of G. W. Luttrell, Dec’d., a petition for suit, reciting in detail the note indebtedness: — principal, interest and attorney’s fee — and the deed of trust given to sepure the same, and attached thereto, as - an exhibit, a copy of the note ás further evidence of the claim; and, then the claimant alleged: “Your petitioner further represents to the court that default has occurred in the payment of said note and that your petitioner, on the 17th day of August, 1932, presented its -claim to Mrs. A. L. Luttrell, Administratrix of the Estate of G. W. Luttrell, Deceased, in the sum of Five Thousand, Two Hundred Forty-one and 99/100. ($5,241.99) Dollars, due by reason of principal, interest and attorney’s fee on the hereinbefore described obligation, but that said Administratrix has not acted upon said claim, nor has she, the said Mrs. A. L. Luttrell, complied with, the provisions of Article 3537, Revised Civil Statutes of the State of Texas. * * reciting the provisions of the statute, relative to claims, and then it concludes by praying for the removal of Mrs. Luttrell as ad-ministratrix and that her letters be revoked.
The evidence, we think, is conclusive leaving no ground on which reasonable minds may differ, that ’ in 1932,, appellee, Guilford Mortgage Company, duly presented to the administratrix of the G. W. Luttrell estate it's claim, évidencing the same note- and mortgage indebtedness as subsequently presented to Administrator Burke' for his approval. Such being true, under the express terms of the statutes, supra, the claim was, in effect, rejected by the -administratrix; and, the 'claimant having failed to institute suit, within ninety days after such rejection, in a court of competent' jurisdiction, the claim became dormant, hence barring the approval of and suit on the same' claim subsequently presented. Furthermore; the claimant having exercised its option to accelerate the maturity of the note indebtedness by presenting its claim to the administratrix in 1932, as a matured claim under Subd.(a), § 1, Art. 3515a, for default in payment of principal, interest and accelerated attorney’s fees, as provided in the note and deed of trust; and the bringing of the suit to establish the first indebtedness as a matured claim, the note became barred by the four-year statute of limitation.
It will-be observed from the claim last presented (January 31, 1939) that the claimant, Guilford Mortgage Company, included $251.8.1 for insurance premiums and $563.95 for taxes, which it had paid subsequent to the date - of its claim of 1932, with a general credit of $123.71. The credit must be. applied to the first item of indebted-.
Accordingly, the judgment of the court below is reformed and as reformed, affirmed, and the trial court directed to enter judgment in accordance with our decision and certify the same to the Probate Court of Dallas County, Texas, for observance. All cost on appeal taxed against appellee.