Anglin v. Barlow

• Decision Date: 16 March 1898
• Citation: 45 S.W. 827
• Parties: ANGLIN v. BARLOW.
• Court: Texas Court of Appeals

Page 827

45 S.W. 827

ANGLIN v. BARLOW.

Court of Civil Appeals of Texas.

March 16, 1898.

Appeal from district court, La Salle county; M. F. Lowe, Judge.

Action by A. J. Anglin, administrator of the estate of W. R. Hawkins, deceased, against M. J. Barlow. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

W. J. Bowen and C. C. Thomas, for appellant. Lane & Hicks and S. T. Dowe, for appellee.

FLY, J.

Appellant, as administrator of the estate of W. R. Hawkins, deceased, instituted this suit to recover 300 goats, alleged to be of the value of $2 each, aggregating the sum of $600. The cause was tried by a jury, and a verdict was instructed for appellee.

Appellee seeks to dismiss this appeal on the ground that the administrator, who has received only temporary letters, did not file an appeal bond. The claim is made that an appeal bond should have been given because the estate of W. R. Hawkins is insolvent, has a judgment for $600 against it, and the value of the property of the estate, excluding the animals in controversy, amounted to only $276, and that the administration was opened, and this appeal prosecuted, in the interest and for the benefit of the surviving widow of deceased. The motion to dismiss the appeal cannot be maintained. In compliance with article 1935, Rev. St. 1895, appellant had, before instituting the suit, applied for an order of appointment as temporary administrator, in which the authority to institute suits for personal property belonging to the estate was specifically and clearly expressed. He was therefore clothed with full power to institute this suit, and occupied the same relation to it that he would have held as the permanent administrator, and had the same rights, powers, and exemptions extended to him. One of the exemptions from matters required of other parties is that he shall not be required to give appeal bonds in order to remove a case by appeal to another court. Because the estate the administrator represents is insolvent, and the whole of the property may be ultimately set aside as an allowance to the widow and children, cannot deprive the administrator of his right of appeal without giving bond. Some one other than the administrator always received the benefit of an appeal without bond, and an inquiry into what will probably be done with the proceeds of the lawsuit is not a legitimate inquiry. The administrator was legally appointed, with proper authority to institute the suit, and had the right of appeal without giving the bond. The issue in the case was as to whether a bill of sale given to the goats in controversy by deceased was intended as an absolute transfer of title to the goats, or merely a mortgage to secure a debt due by deceased to appellee.

The instrument under which appellee claimed the goats was, on its face, a bill of sale, but it was permissible to show that it was a mortgage. The intention of the parties would determine the design of the instrument, and, to arrive at such intention, the circumstances preceding the execution of the instrument and those occurring afterwards would be the proper subjects of inquiry. Horne v. Pickett, 22 Tex. 205; Hudson v. Wilkinson, 45 Tex. 445; Loving v. Milliken, 59 Tex. 423; Miller v. Yturria, 69 Tex. 549, 7 S. W. 206. While every circumstance tends to throw light upon the intention of the parties, testimony of appellee to the effect that he and deceased intended the instrument to be a bill of sale was not proper. That was the issue to be determined by the jury, and not by one of the parties to the action. Testimony to the effect that deceased had at various times given notes to L. A. Kerr, and secured them by giving bills of sale, was properly excluded, as not tending to elucidate the issue before the court. Evidence of statements made by the deceased to his wife and to appellant was not proper, and there was no error in not permitting...