Another v. Cisneros

• Decision Date: 01 January 1853
• Citation: 10 Tex. 34
• Parties: BLAIR AND ANOTHER v. CISNEROS.
• Court: Texas Supreme Court

10 Tex. 34

BLAIR AND ANOTHER

v.CISNEROS.

Supreme Court of Texas.

1853.

Facts which show that the plaintiff has no right to recover in the capacity in which he sues, as that of administrator, go to the foundation of the action, and may be given in evidence under the plea of not guilty, in the action of trespass to try title.

The common law and Spanish law in relation to estates of deceased persons, compared and discussed.

In the Mexican law, acceptance by the heir was necessary in order to vest the estate in him; acceptance was either pure and simple, or with the benefit of inventory; and pure and simple acceptance was either express or tacit. It was express when the title, or quality, of heir was assumed, whether done verbally or in authentic or private writing; and it was tacit, when the heir did some act which necessarily presupposed his intention to accept.

The heir could do certain acts of a conservative character, such as were usual in provisory administration, without being held to a tacit acceptance of the succession.

See this case for circumstances in which the heirs, minors, were held to have made a tacit acceptance of the succession; although, as a general rule, minors could not by their own act, accept of a succession.

Where the ancestor died in 1833, owing no debts, and the heirs accepted the succession, and the widow administered in 1849: Held, In an action of trespass to try title by the widow, as administratrix, that the grant of administration was a nullity, and that the suit should be dismissed. (Note 6.)

There may be cases in which after a great lapse of time, administration, at least a limited one, may be deemed expedient; and it seems that the administrator in such a case, when suing in the District Court, must set out the facts and prove them, which justified the issue of letters of administration in the particular case.

Where there is no administration, the heirs may sue for and recover the property of the estate.

After the lapse of a certain time, administrations must be considered as closed, whether ever administered in point of fact or not.

Where an estate was accepted under our former laws, without benefit of inventory, no administration was necessary. But, in ordinary cases, such administration would not be considered absotutely void.

Appeal from Jackson. The appellee, as the administratrix of Juan Nepomaceno Cisneros, brought this action for the recovery of a league of land, alleged to belong to the estate of the deceased. It was averred, that, after the death of the said Juan, and before the grant of administration, the defendants on the first day of June, 1848, did enter upon the said land, and then and there--and subsequently up to the commencement of this suit--did commit divers trespasses, &c.

The defendants severed in their answers, but pleaded and relied upon the same or matters of a like character in their defense. By way of abatement, as it was termed in the proceedings, they pleaded that this action could not be maintained, on the ground that the deceased intestate departed this life in 1843, and that all his property vested in his legal heirs and successors by the laws of Coahuila and Texas, without the aid of an administration, in the said year 1833; and that the land in controversy became the property of the said Rosalia (the plaintiff) as his surviving wife, and of Estelan, Maria, and Guadaloupe Cisneros, the heirs at law of the said deceased; and that the plaintiff, as administratrix, has no right to the possession of said land or to this action. This plea was supported by affidavit, but the facts were again averred in a subsequent portion of the answer, with the additional statement that the said Rosalia and the heirs, in the month of May, 1836, left the State and domiciliated themselves in Tamaulipas and under the Government of Mexico, and that they there remained until the year 1848.

The plaintiff, by amendment to her petition, averred that at the death of her husband, her children, the heirs of her husband's estate, were minors; that Maria, her eldest daughter, married in 1834, before she became of age; and that Guadaloupe was married in 1847, being then a minor, and from that time had been under the disability of coverture, and was not of full age. It was proved that the deceased owed no debts; that the preliminary proceedings to obtain title to his land were commenced in his lifetime, but that the title of possession did not issue until 1835, some year or two subsequent to his death; that the family continued to live upon the land after the death of the intestate, having horses, oxen, &c.; that the mother and the eldest son took charge of the property; and that the widow was under the direction of the authorities for regulating such matters until 1836, when the family moved away. That the son and the eldest daughter and her husband followed the Mexican army on its retreat. The mother remained until 1837 or 1838, when the son came after her. The mother and son returned to Victoria in 1847; and the mother took out administration in February, 1849. One of the witnesses testified that there was no administration shortly after the death of the deceased, but that the widow and children kept possession. A demurrer to the plea in abatement was sustained, and the plea was ordered to be stricken out.

S. A. White, for appellants. The first subject presented for the action of the court is, whether the defendant's plea in abatement was properly stricken out in the court below. It is not easy for us to see why this was done. The plea was to the right of the plaintiff to sue as administratrix, setting forth that the property had passed, by operation of law, into the possession of the heirs. The facts are not controverted nor denied; but, on the contrary, are fairly proven.

It will be recollected that this descent was cast in the year 1833 or 1834, one or two years previous to the Texas revolution, and was therefore governed by civil law rules. This will make some references to civil law authorities necessary, which, from our present position, will necessarily be very limited, but the doctrine will be so familiar as to render them less important. (See Civil Code, arts. 982, 988.) We lay it down as a civil law rule, that there was no cessation in the possession of property between ancestor and heir, as there is under the statutes of Texas. (See Brown's Civil Law, p. --.) On the contrary, the heir succeeded, not so much to the property, as to the person of the testator. So that, in contemplation of law, it was rather a continuation of the same person, and might be illustrated by the rules with us, in respect to corporations and kings, who are said never to die, and gives rise to the maxim in the civil law, nemo mori potest ex parte testatus, ex parte intestatus; because his heir, to all intents and purposes, represents himself, and whatever was the ancestor's became the heir's, and that whether by testament or otherwise, for he takes not by the purchase, but by representation of the ancestor. (See Brown's Civil law, vol. 1.)

It may therefore be said, that when the ancestor breathes his last, the heir, as such, breathes his first. Any qualification to this rule is for the benefit of the heir; for, as a consequence of the foregoing, the heir would inherit the liabilities of the ancestor, as well as his property, which would often place him in a worse condition than a stranger. The civil law adhered to this rule so strictly, that ancestors often made slaves or bondmen their heir, that the son might escape disgrace and the liabilities of their parents, and for which the slave made heir was freed.

This last may seem whimsical enough, and it is not the practice now, but the identity of ancestor and heir is still maintained, though with some modifications, as will be seen in the Louisiana Reports, as well as the code. These modifications are, first, the right of the heir to refuse, to have one year to consider, or to accept with inventory, either of which he can do; but if he renounces at all, he must do it within one year. It is unnecessary to follow this any further, as in this case the heirs accepted by taking possession, under the authorities. This seems to us to place the heirs in the possession of all the estate of their ancestor, with all the right they can have by or through an administrator, even if the administrator had the right to reduce the property into his own possession. We are at a loss to conceive why it occurred to the plaintiff below to take this mode of bringing her suit, unless it was to avoid difficulties more embarrassing, although more direct. Perhaps the heirs of some of them are still in Mexico, or perhaps believing that by administering the estate would be viewed as unrepresented, or representing itself, would not be subject to the same conditions or the same penalties and forfeitures as it would if the possession accompanied them in their lusts for the “fleshpots of Egypt.” Let this be as it may, from the evidence in the case they certainly accepted the succession, and took possession of the estate, and we can see no reason why the plea in abatement should not have been sustained.

If there is a possible doubt on this subject, it would seem to be in this, as pleaded in plaintiff's amendment, that the daughters were minors at the opening of the succession, and that they married before arriving at their majority. But the privileges under this plea vanish immediately on the recollection, 1st, that minors may act to their advantage, and their acts are only voidable, and not void; and they can only take advantage of their minority after they come of age, by refusing to confirm. In this case we see no objection to the acts of minority, but on the contrary they now actually confirm these acts. 2d, a minor emancipated by marriage was entitled to her share of the succession. (See Gaiennie v. Hepp, 3 La. R., 576.) Again, the heirs, although...