Brown v. Franklin

• Decision Date: 01 January 1876
• Citation: 44 Tex. 559
• Parties: JOHN BROWN AND HENRY RUENBUHL v. JOSEPH FRANKLIN, ADM'R.
• Court: Texas Supreme Court

44 Tex. 559

JOHN BROWN AND HENRY RUENBUHL

v.JOSEPH FRANKLIN, ADM'R.

Supreme Court of Texas.

1876.

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

C. B. Sabin and Leslie Thompson, for appellants. This was a suit brought by an administrator de bonis non against a former administrator and purchaser to set aside various orders and decrees of the Probate Court, and an order of sale, and sale thereunder, of certain real estate, and thereby to recover a tract of land, without joining the heir. This we say could not be done. And we submit that it was error in the court to overrule the general demurrer and special exceptions to appellants' original and amended petitions.

An administrator de bonis non cannot maintain an action in the District Court to vacate a decree obtained by his predecessors in the Probate Court. The only suit maintainable by an administrator de bonis non against his predecessor, is a suit on the bond of the latter for property or assets of the estate not accounted for.

An administrator de bonis non is not a “person interested in the estate” within the meaning of Paschal's Dig., art. 1382. (McDonald v. Alford, 32 Tex., 35;Johnson v. Hogan, 37 Tex., 77;Barrett v. Barrett, 31 Tex., 345;Murphey v. Menard, 11 Tex., 673.) If such a suit is brought the heir or heirs must be made parties. (Paschal's Dig., arts. 5614, 5669, 5700.)

Gresham & Mann, for appellee. Only one of the appellants (Henry Ruenbuhl) has filed a brief in the case, and the only errors relied upon therein seem to be--

1. That an order of the Probate Court allowing and approving claims against an estate cannot be set aside by the District Court unless that tribunal acquires jurisdiction by means of a writ of certiorari; and

2. That the administrator de bonis non in this case could not sue to set aside the sale of the lot in question, and to recover it for the estate, without joining the heirs with him in the suit.

As to the first point, we hold the law to be as follows: “The allowance and approval of a claim by an administrator and the chief justice, being a quasi judgment, cannot be appealed from or revised upon certiorari by the District Court. It can only be set aside or nullified by an original proceeding commenced in the District Court for that purpose, showing that the claim could not legally have been allowed; to support which we cite the following authorities: Heffner v. Brander, 23 Tex., 632;Eccles v. Daniels, 16 Tex., 136;Neill v. Hodge, 5 Tex., 487;Jones v. Underwood, 11 Tex., 116;Pitner v. Flanagan, 17 Tex., 9, which are conclusive.

As to the second point, our argument is that the lot in question will be, when recovered, unadministered assets belonging to the estate, and in the hands of the administrator to pay debts; petition alleges debts due by the estate. The purpose of this suit was to set aside fraudulent proceedings and recover back to the estate this lot, which still belonged to the estate, and always had; and to show that fraudulent proceedings, such as were resorted to by Brown and Ruenbuhl, could not divest the estate of its title to the lot. How, then, could an heir sue or be joined in a suit for property that goes back into an estate as unadministered assets in the hands of the administrator, out of which debts are to be paid? This was not a suit of trespass to try title, in which the title to the lot in question is affected; it is a suit for the possession of the lot, the title to which had never passed out of the estate. If the suit were one of trespass to try title the point made would be good, and the heirs would have to be joined with the administrator in the suit. Such, however, is not the case. Our view of the law is that “heirs cannot sue for the possession of property belonging to an estate which is unadministered, and which, when recovered, will still be assets in the hands of an administrator, out of which debts are to be paid. The administrator, or, as in this case, the administrator de bonis non, alone can sue.” To support this proposition we cite the following authorities: Cochran v. Thompson, 18 Tex., 657;Giddings v. Steele, 28 Tex., 748;Lacy v. Williams, 8 Tex., 182;McIntyre v. Chappell, 4 Tex., 187;Moore v. Morse, 2 Tex., 400;Evans, Guardian, et al., v. Oakley, 2 Tex., 182;De Witt v. Miller, 9 Tex., 247.

Wheeler & Rhodes, for appellants, in reply. The administrator de bonis non could not maintain the action.

Paschal's Dig., art. 5614, is clear and unmistakable, and in the following words:

“It follows from the preceding section that executors may sue and be sued for the possession of real property, but that the title to such property cannot be affected by any suit to which the persons entitled to recover the remainder of the estate are not parties.” (See also arts. 5697, 5698, and 5700.)

In the case of Barrett v. Barrett, 31 Tex., 347, the Supreme Court makes use of the following language:

“It is impossible to adjudicate upon the title of land held by an estate without making the heirs upon whom the descent was cast parties.”

In the case of McDonald v. Alford, 32 Tex., 35, a case identical in all its material features with the one at bar, the court reviewing arts. 1376 and 1382, Paschal's Dig., lay down the following principles:

“An administrator de bonis non is not a person interested in the estate of his intestate within the meaning of art. 1382, Paschal's Dig., which authorizes persons so interested to institute suit in the District Court to correct accounts of executors or administrators settled in the Probate Court.”

Again: “An administrator de bonis non cannot maintain an action in the District Court to vacate a decree obtained by his predecessor in the Probate Court.”

In the same decisions we find, “It is not competent for an administrator de bonis non, nor even for parties interested in the estate, to combine in one suit an action against a former administrator to set aside an order obtained by him, with an action against a third party, to recover land conveyed under such order.”

In the case of Murphey v. Menard, 11 Tex., 673, the Supreme Court (Justice Wheeler delivering the opinion) hold, “That an administrator de bonis non cannot, either under the law governing estates or on general principle, maintain an action in the District Court to revise the settlement of the accounts of a former administrator.”“Such proceeding lies at the suit of a creditor legatee or distributee only.” And further, “It seems that the only action which an administrator de bonis non can have against a former administrator, is on the bond, not for maladministration or devastavit but to recover any amount that is shown to be due by the settlement of such former administrator's final account.”

In the case of Johnson v. Hogan, 37 Tex., 80, the court reaffirm the principle that the account of a former administrator cannot be revised at the suit of an administrator de bonis non. But, say counsel for the appellee, the lot in question will be, when recovered, “unadministered assets of the estate.” Certainly; but how recovered? By vacating a decree obtained in the Probate Court of Galveston county, and by reversing and setting aside the accounts of the former administrator, Brown, which we have conclusively shown cannot be done in this character of procedure. We do not claim that this is an action of trespass to try title, and that the administrator is not the proper party to sue for the possession of unadministered property belonging to the estate. But is not something more than possession sought in this cause? The answer...