Bufford v. Wife

• Citation: 10 Tex. 560
• Parties: BUFFORD AND OTHERS v. HOLLIMAN AND WIFE.
• Decision Date: 01 January 1853
• Court: Texas Supreme Court

10 Tex. 560

BUFFORD AND OTHERS

v.HOLLIMAN AND WIFE.

Supreme Court of Texas.

1853.

Where the deceased bequeathed to his wife the lot where she lived, several negroes, cattle, hogs, &c., during her natural life, and at her death “to become the property of my own children, as well as of Alfred, my wife's son,” it was held that the remainder vested at the death of the testator, and that, therefore, the interests of those of the remaindermen who died before the wife did not lapse in favor of the survivors, but descended to their heirs.

Where there is a legacy, with a remainder over, and the legacy passes to the first taker, in a suit afterwards brought by the remainderman to recover the legacy it is not necessary to aver a grant of administration on the estate of the testator nor to make his representatives parties.

The difference between the right of an administrator to the property of an estate under the English systsm of jurisprudence and the statutes of this State discussed.

Where but a limited period has elapsed since the death of the deceased it would be inconvenient, as a general rule, to permit legatees or distributees to sue strangers for personal property; not for the reason that they are not really the owners and have no certain interest until after administration, but as there is a presumption of the existence of debts, and as they have a prior claim, it is more convenient that the succession be controlled by one responsible agent representing the rights of all interested, and preparing it, after being relieved from incumbrances, for distribution among the rightful owners But where time is permitted to run on, where the creditors, if any, will not take measures to enforce payment, the presumption arises that there are no debts; and the real owners in possession of the property, or having rights thereto, cannot be disturbed in their possessions or thwarted in their actions by attempts at administration for the benefit of creditors whose claims, by their own laches and neglect, have been forfeited. (Note 102.)

In the absence of allegation and proof of the laws of another State, the rights of the parties, arising out of the facts alleged, or alleged and proved, must be determined by the laws of this State.

Appeal from Shelby. On the 13th day of April, 1814, Yancy Thornton departed this life in the State of Tennessee, having on the same day executed his will, by which he appointed his wife, Amelia, and John Allen his executrix and executor, and, among other devises and legacies, bequeathed to his said wife, Amelia, the house and lot where she lived, several negroes, among whom was one named Phœbe, cattle, hogs, &c., during her natural life, and at her death to “become the property of my own children, as well as of Alfred, my wife's son.” The petition averred that the wife, Amelia, immediately after the death of the husband and testator, took possession of the property embraced in the bequest, and at her death, in January, 1843, in the Republic of Texas, she still had Phœbe, one of the slaves, with her increase, in her possession, and that since her death the said Phœbe, with her children and grand-children, had remained in possession of the appellees, M. P. Holliman and Eliza, his wife. The said Eliza was the only surviving child of the testator, Yancy Thornton. His other children, viz: Harriet and Patsy and step-son, Alfred, departed this life long before the death of the said Amelia. Harriet and Alfred died in 1830, unmarried, without wills and without issue. Patsy was, at the time of the execution of the will and death of her father, the said Yancy, intermarried with one William Bufford, and she died in 1821, leaving her husband surviving, who did not die until 1844, which was subsequent to the death of Amelia, the tenant for life. The issue of the said William and Patsy Bufford were Yancy T. Bufford, who died in 1842, (before the death of the said Amelia,) without issue; Samuel T. Bufford, William C. Bufford, and Minerva Blanton, wife of Henry Blanton; and these were averred in the petition to be then, and at the death of the said Patsy, the only heirs of the said Patsy and William Bufford, and as such they claimed that, under the bequest, they were entitled to one-half of the said slave Phœbe and her increase. And it was further averred that the above-named William C. Bufford did, in 1844, duly transfer to John Hinson, one of the petitioners, all his right, title, and interest in the slaves in controversy. The petition was filed in 1845, and, after setting forth the above and other facts, prayed for a writ of partition, &c. The defendants, viz: Eliza, the surviving daughter of the testator, and her husband, M. P. Holliman, demurred, and also answered to the facts of the petition.

The demurrer was sustained and the petition dismissed. There were various special causes or grounds of the motion to dismiss, of which it was said in the brief of the appellants that the following were relied upon by the appellees in the court below and were the grounds upon which the demurrer was sustained, viz:

1st. That the petition does not show that administration had been granted on the estate of Yancy Thornton to any one, nor has such administrator been made a party to this suit.

2d. That the petition does not allege a grant of administration upon the estates of Harriet Thornton, Alfred Thornton, and Amelia Thornton, nor of Patsy, or of William Bufford, her husband, or that any portion of their respective legacies under the will had been adjudged to them by any court of competent jurisdiction, nor have the representatives of these persons, or any of them, been made parties to the suit.

J. P. Henderson and J. M. Ardrey, for appellants. I. The appellants contend that the court erred in sustaining the exceptions to the petition.

The points of exception that were relied upon by the defendants in the court below, and upon which the court sustained the demurrer, are, 4th exception in the demurrer, filed 5th September, 1850, which is as follows: That the bill of plaintiff does not show that administration has been granted upon the estate of Yancy Thornton to any one, nor has any such administrator been made a party to this suit; and, 5th exception, because the bill does not show that administration has been granted upon the estate of Harriet Thornton, Patsy Bufford, and William Bufford, and that their or any part of either of their legacies or portions of the estate of said Yancy Thornton's estate had been decreed or adjudged to them, said plaintiffs, by the proper tribunal having jurisdiction over said matters, nor have the representatives of said parties been made parties to this suit.

Upon the first exception it is shown that in the petition it is averred that letters testamentary upon the estate of Yancy Thornton were granted to Amelia Thornton and John Allen, executors. It is averred that Amelia Thornton was in possession of the negro woman Phœbe, and brought her to Texas, and remained in her possession until her death, and the possession of the tenant for life was the possession of the remaindermen, and there was no necessity for the legal representatives of Yancy Thornton to be made parties to this partition, for the presumption of law is, that the tenant for the life estate being executrix of the will and testament of Yancy Thornton, and in possession of the property, she held it in subordination to the will.

II. Then, upon the second exception, as the plaintiffs derive title by descent and distribution to the property which they claim in partition, against defendants through Alfred Thornton, their uncle, and Harriet Thornton their aunt, and Patsy Bufford, their mother, the question is presented whether it was necessary that there should have been a grant of administration upon their respective estates, and a decree for distribution by the Probate Court of the place of their domicile to the present plaintiffs, in order to enable them to maintain the present action.

The remaindermen, Alfred Thornton, Harriet Thornton, and Patsy Bufford, departed life before the termination of the life estate by the death of Amelia Thornton in 1843, and it is not thought to be material to discuss the question whether the estate in remainder lapsed by their death with a right of survivorship in the defendant Eliza Holliman, for, as the will is set out, it does not appear that such was the limitation affixed to it by the donor. And unless such was the case the plaintiffs would take by representation to the heir they stand for, and the result would be the same.

The appellants beg leave to call the attention of the court to the case decided by them of McIntyre v. Chappell, in which it is thought that the question raised by defendants' exception has been determined and settled, and it is hoped that counsel will not be considered as vain and presumptuous in offering some considerations upon the subject in aid of that decision. We do not think that the laws of Tennessee will govern as to the remedy which is sought for the enforcement of rights that accrued under the laws of Tennessee, and that it was not necessary to have specially pleaded those laws. They were facts to be given in evidence to the court and jury upon the trial of the cause.

We contend that under our system of jurisprudence a grant of administration creates only a title in trust to the real and personal property which a party dies seized of in the administrator, first for the benefit of creditors of the deceased, and if there be no debts then to the next of kin, under our statute of distribution and descent. Our system of law establishes a medium principle between the common-law regulation of title to personal property and that of real property. Our courts recognize trust estates as well as legal estates, and enforce them according to the interest in the property and the relation that it has to the persons who claim to own it. It will be admitted that...