Branch v. Hanrick

• Decision Date: 15 May 1888
• Citation: 8 S.W. 539
• Parties: BRANCH <I>et al.</I> v. HANRICK <I>et al.</I>
• Court: Texas Supreme Court

8 S.W. 539

BRANCH et al. v. HANRICK et al.

Supreme Court of Texas.

May 15, 1888.

Appeal from district court, Falls county.

Wharton Branch, appellant, pro se. J. D. Lum, for Minter, intervenor.

GAINES, J.

This is a proceeding originally instituted in the county court of Falls county, by Wharton Branch, one of the appellants here, for the purpose of compelling E. G. Hanrick, who was alleged to be the administrator of the estate of Edward Hanrick, deceased, to make an exhibit preparatory to a partition of the estate. It was alleged that Branch was the owner of a distributive share of the estate; that E. G. Hanrick was appointed administrator thereof in 1867, by said court, and that the administration had never been closed. E. G. Hanrick appeared, and answered that the administration had been closed by lapse of time and by operation of law. Ellen Hanrick, Annie Hanrick, and Elizabeth Clare, joined by her husband, heirs of the intestate, also appeared, demurred, and specially excepted to the petition, and also pleaded specially that no action had been taken in the court in reference to the administration in 10 years, and that there was a suit pending in the district court of Falls county between the heirs for a partition of the estate. Upon hearing in the county court, it was ordered that E. G. Hanrick, as administrator, make and file an exhibit of the condition of the estate. From this judgment he appealed to the district court. J. G. Minter, one of appellants in this court, intervened in the cause after it was appealed to the district court, alleging that he was administrator of the estates of James Hanrick, John Hanrick, and Elizabeth O'Brien, deceased, who with E. G. Hanrick were the sole heirs of Edward Hanrick, deceased, and joined in the application of Wharton Branch. He also alleged that E. G. Hanrick was administrator of the estate of Edward Hanrick, deceased, and that the estate was ready for partition and distribution. In the view we take of the case upon appeal, it is not necessary to notice the pleadings further. The district court, upon final hearing, denied the application to require the administrator to make an exhibit, and adjudged that the applicant Branch should pay the costs. The judgment recites that the court was of opinion that the application "comes too late," from which it is to be inferred that it was held that, by reason of the time which had elapsed between the last proceeding had in the county court and the filing of the application, the administration must be conclusively presumed to have been closed. There was no action upon the demurrers, and they are deemed to have been waived.

The statement of facts shows that the court-house of Falls county, and a part of the records of the county court, were burned. But an order of court was introduced in evidence dated March 25, 1867, appointing E. G. Hanrick administrator of the estate of Edward Hanrick, deceased; also an order dated April 26, 1867, appointing appraisers of the estate; another dated May 27, 1869, approving the inventory and appraisement; and lastly an order of March 31, 1869, approving an annual exhibit and decreeing a sale of lands. No record evidence was introduced showing any subsequent action by the administrator in the court or by the court itself in regard to the estate; and we think the court was fully warranted in concluding from the testimony that no such action had been taken. There was no direct evidence offered tending to show a settlement of the administration, and the conclusion is inevitable that it was never in fact closed by any formal action of the court. Such being the case, is it to be conclusively presumed that the administration had been closed when the application was filed on August 11, 1885? We think not. More than 16 years had elapsed, since the last order...