12 S.W. 525 (Tex. 1889), Howard v. Russell

Citation:12 S.W. 525, 75 Tex. 171
Opinion Judge:GAINES, J.
Party Name:HOWARD et al. v. RUSSELL et al.
Attorney:Evans & Evans, Robert H. Taylor, [75 Tex. 173] M. F. Moore, [75 Tex. 171] and Walton, Hill & Walton, for appellants. [75 Tex. 174] Taylor & Galloway, Richard B. Semple, and T. A. Green, for appellees.
Case Date:November 19, 1889
Court:Supreme Court of Texas
 
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Page 525

12 S.W. 525 (Tex. 1889)

75 Tex. 171

HOWARD et al.

v.

RUSSELL et al.

Supreme Court of Texas

November 19, 1889

Appeal from district court, Fannin county; W. A. EVANS, Special Judge.

Page 526

Evans & Evans, Robert H. Taylor, [75 Tex. 173] M. F. Moore, [75 Tex. 171] and Walton, Hill & Walton, for appellants.

[75 Tex. 174] Taylor & Galloway, Richard B. Semple, and T. A. Green, for appellees.

GAINES, J.

W. W. Russell, one of the appellees, instituted this proceeding in the county court of Fannin county. It was an application for his appointment as administrator of the estate of Thomas C. Bean, deceased. The applicant alleged that Bean had died intestate, being at the time of his death a resident of that county; that he had left an estate of the probable value of $200,000, and that a necessity existed for an administration by reason of the fact that there were debts against the estate. The applicant further alleged that he was not disqualified to act as administrator, and that he was a person of good character, residing in the county, but did not claim that he was a creditor of the estate, or of the next of kin, of the deceased. Appellant H. P. Howard filed an answer contesting the application, alleging that he was of the next of kin to the deceased, and that he resided in the state of Texas, and praying that the administration be granted to him. Sarah [75 Tex. 175] A. Dove also appeared and contested Russell's application, averring that she was an heir and of the nearest of kin to the deceased, and praying for the appointment of H. P. Howard. J. W. Saunders also filed an objection to the appointment of an administrator, alleging that he was a brother of the deceased, and praying that in the event an administration should be deemed necessary that he be appointed. The case was tried in the county court, and resulted in a judgment in favor of Howard, from which Russell appealed to the district court. E. J. Short and others intervened in the suit in the district court, claiming to be assignees of all the interest of J. W. Saunders, the alleged brother of the deceased, in the estate, and opposed the appointment of Howard as administrator, and prayed for the appointment of Russell, should the appointment of an administrator be considered necessary. John S. Bean and others, claiming to be next of kin and heirs of the deceased, also intervened and opposed the appointment of Howard, and prayed the appointment of Russell in the event letters of administration were granted. The case was tried before a jury in the district court, and resulted in a verdict and judgment in favor of Russell. There was a motion in the district court to dismiss the appeal on the ground that the bond was not in conformity with the statute, which describes the nature of the obligation to be given upon appeals from the county court in matters of probate. Rev. St. art. 2201. The bond is given for a definite sum, and we have held this is sufficient, although the statute does not provide that the obligation shall name any particular amount. Hicks v. Oliver, 71 Tex. 776, 10 S.W. 97. There was no error in overruling the motion to dismiss the appeal.

The contestant Howard claimed and offered testimony tending to show that the deceased was a son of one Colmore Bean, who was a brother of George Bean, and it was admitted that Howard was a grandson of George Bean. The proof showed that the deceased was about 70 years of age at the time of his death, and that he was never married, and it also tended to establish that, if he was the son of Colmore Bean, his father and mother were dead, and that his brothers and sisters were also dead, and had left no descendants. There was evidence tending to show that a Colmore Bean, who was a brother of contestant Howard's grandfather, had lived in Washington city from about 1812 to about 1818; that from there he had moved to Northumberland county, Va., and...

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