Bayne v. Garrett

• Decision Date: 01 January 1856
• Citation: 17 Tex. 330
• Parties: GRAFTON H. BAYNE, ADM'R, v. WILLIAM GARRETT, ADM'R.
• Court: Texas Supreme Court

17 Tex. 330

GRAFTON H. BAYNE, ADM'R,

v.WILLIAM GARRETT, ADM'R.

Supreme Court of Texas.

1856.

Administration granted in 1842; administrator's final account filed and approved and administrator discharged in 1848; application filed in 1854 by creditor for payment of a judgment recovered against said administrator in 1850, and affirmed on appeal to the supreme court in 1851; it appeared that notwithstanding the discharge in 1848, the administrator had afterwards acted and been recognized in that capacity by the probate court: Held, on the authority of Townsend v. Munger, 9 Tex. 300, and Poor v. Boyce, 12 Id. 440, that the presumption was, that the order of discharge was revoked; and the judgment of the district court which reversed the judgment of the probate court sustaining the application, was reversed, and the judgment of the probate court was affirmed. [9 Tex. 300;12 Tex. 440;ante, 322.]

Error from San Augustine. Tried below before the Hon. Archibald W. O. Hicks.

Henderson & Jones, for plaintiff in error.

O. M. Roberts, for defendant in error. This record shows a final settlement, recognized by the county court, and a full discharge as administrator January 31, 1848, and that this proceeding was instituted against Garrett in 1854.

This court has decided that after administration has been closed it cannot be administered on again. (Hunt v. Horton, 12 Tex. 385; Fisk v. Norvel, 9 Id. 13.)

That an administrator discharged is not amendable to the county court as administrator, see Farris v. Northcote, 6 Tex. 185.

The farthest the court has gone is, that the neglect to continue the administration from year to year by express order will not invalidate his acts relating to third persons. (Poor v. Boyce, 12 Tex. 440.)

Under these decisions, it is clear that though property may have been left in Garrett's hands on the close of administration, and that had been established in evidence, it was the property of the heirs of Jacob Garrett, vested in them, and not subject to further administration.

LIPSCOMB, J.

There has been a great deal more difficulty in reading this record and understanding it than is presented by the law of the case. The clerk seems to have been experimenting upon how much perplexity he could throw into his transcript; and if so, he has certainly been eminently successful. Instead of the transcript presenting the different component parts in their proper consecutive connection, it has the appearance of each having been written on a separate piece of paper, and then well shuffled together, after which he has transcribed from each in the order they were left by the shuffler. But, with great labor on the part of counsel, we believe that the different parts have been properly and finally joined together in the order in which the transcript ought to have presented them.

It appears that in 1854, the plaintiff in error filed his petition in the probate court for San Augustine county, against the defendant in error, in which he stated that at the October term, A. D. 1850, of the district court for San Augustine county, one Edmund P. Gaines recovered a judgment against the defendant in error, as the administrator of Jacob Garrett, for eleven hundred dollars and costs of suit, which was ordered by the district court to be paid out of the assets of Jacob Garrett, in due course of administration; that the defendant in error appealed from this judgment to the supreme court in 1851, and the supreme court affirmed the judgment in all things; that Gaines assigned the judgment to the plaintiff in error, for the benefit of the estate of David Kennedy, of which the plaintiff in error is administrator; and that defendant in error has not paid any part of the judgment, nor made any account of his administration since the rendition of the judgment; wherefore he prays that defendant in error be called on to account, etc.

To this petition the defendant in error pleaded that the plaintiff in error was not the administrator of the deceased David Kennedy, because that administration on said Kennedy's estate had been opened more than twelve months previous to the institution of this suit, and there had been no continuance thereof, and that it was closed by operation of law; also, that the defendant was not the administrator of Jacob Garrett, deceased, at the institution of this suit; but that administration had been closed in 1849 by operation of law; also, that he is not responsible to make distribution of the proceeds in his hands, as shown by the sale of property to the full extent, because his account of final settlement of said estate shows that the estate is indebted to him six hundred and four dollars and twenty-six cents for the preservation and management of the estate, which account had been allowed him.

There was a judgment in the probate court, that defendant, as the administrator of Jacob Garrett, pay into the court for the use and benefit of the estate of David Kennedy, the amount of the judgment mentioned in the petition, and that execution issue to enforce the order. An appeal was taken to the district court, where a jury was waived and the case submitted to the court on evidence, of which the following is the substance: In 1842 an inventory of the property belonging to the estate of Jacob Garrett was returned to the probate court, appraised at $6,117.63;...