Burdett v. Albert Silsbee's Adm'r

• Decision Date: 01 January 1855
• Citation: Burdett v. Albert Silsbee's Adm'r, 15 Tex. 604 (Tex. 1855)
• Parties: GILES H. BURDETT v. ALBERT SILSBEE'S ADM'R AND OTHERS.
• Court: Texas Supreme Court

15 Tex. 604

GILES H. BURDETT

v.ALBERT SILSBEE'S ADM'R AND OTHERS.

Supreme Court of Texas.

1855.

In a case involving the validity of a title under administration in Bastrop county, where a jury had been waived, this court said: The witnesses for the plaintiffs testified that he(the decedent) had a fixed residence in Matagorda county; and the witnesses for the defense, on the other hand, testified that his residence, at the time of his death, was in Bastrop county.His permanent residence doubtless had been in the former county until shortly before his death.Whether he had effected a change of residence may be matter of some doubt.However, it was competent for the court in Bastrop (where administration was first opened) to decide the question upon the petition for the grant of administration, and its decision is conclusive until reversed.It cannot be drawn in question in a collateral action.It conferred authority upon the administrator to act in the matter of the administration until his power expired or was revoked by competent authority; and the probate court of Matagorda county(where administration was soon afterwards opened also) had not authority to revoke it; nor could its subsequent grant of administration to another have that effect.

After the act of 1840(Hart. Dig.p. 324), the laws of Louisiana ceased to afford the rule of practice, in the settlement of successions, in our courts.

The five years' limitation under the code of practice of Louisiana, within which vacant successions were required to be fully administered, and beyond which the court had not power to extend the administration, never had any effect upon any estate administered in this country; because five years did not elapse from the period of its introduction (January, 1836) until it was superseded by the act of 1840.(Hart. Dig.p. 324.)

Where letters of administration were issued in November, 1838, and inventory and appraisement filed, and no further order or paper appeared until January term, 1847, when it was ordered that “this case be continued until the next term of the court,” and the next order was a judgment nisi against the administrator, for costs of the administration, at November term, 1847, made final January term, 1848, and at November term, 1848, the administrator filed an account and prayed an order of sale, the question being as to the validity of the title of the purchaser at such sale, which had been confirmed, this court said: If this were a suit or proceeding in which the authority of the administrator was directly, instead of being collaterally drawn in question, it might be subjected to a severer scrutiny.But the case is different where his authority is thus drawn in question in a collateral action, for the purpose of invalidating the title of a purchaser at the administrator's sale.Where sales have been thus made and confirmed by the judgment of a court of competent jurisdiction, it is well settled that the judgment, unless impeached for fraud, cannot be drawn in question in any collateral action or proceeding.

A purchase at administrator's sale, where it proves to be invalid, may constitute the basis for a claim for valuable improvements made in good faith.

Appeal from Travis.Action of trespass to try title, brought by Edward A. Pearson, administrator de bonis non of Albert Silsbee, against the appellant, for one-third of a league of land, situated in Travis county.Petition filed May 2, 1853.Defendant, besides claiming the land as his own property, pleaded the statute of limitations of three years, and suggested valuable improvements in good faith.Intervention by the heirs of Silsbee; jury waived.Judgment for plaintiff.

Statement of facts.Plaintiff's evidence; transcript of proceedings of county court of Matagorda county; petition of Howell T. Davis, filed November 30, 1839, representing that Albert Silsbee, of the county of Matagorda, was killed by Indians while out upon a surveying expedition, some time during the month of October last, having considerable property in his possession belonging to the petitioner and others; that he had left considerable property in the hands of the petitioner, as his agent, for safe custody; that before he left, deceased gave petitioner full authority to manage and transact all his business during his absence; that he has left no will or testament that your petitioner is aware of, and believes he has no relation in this republic; that petitioner is a considerable creditor of said succession; prayed to be appointed curator and administrator of said succession, etc.Order that the foregoing petition be received and that publication be made according to law, signed by two associate justices, acting as judges of probate, Matagorda, 25th of November, 1839. OrderDecember 30, 1839, appointing said Davis curator and administrator of said succession, upon filing bond, etc.March 14, 1840, appraisers appointed; same day oath of appraisers.March 17, 1840, inventory and appraisement filed, which did not include the land in controversy in this suit.April 27, 1840, “William Baxter, a justice of the peace, by virtue of authority vested in the probate court by law,” was appointed administrator of said succession; appeared in open court and took the oath and gave bond, etc.; letters issued.May 25, 1840, inventory and appraisement filed by Baxter, which did not include the land in controversy in this suit; same day petition and order for sale of all the personal property.December 9, 1840, return of sale.June 1, 1841, petition of Baxter to be discharged.June 29, 1841, return of account by Baxter.June 30, 1841, petition of Baxter, and order of court for prolongation of the administration for twelve months.September, 1, 1841, bond renewed.February 23, 1843, petition of Baxter for prolongation of the administration.March 1, 1843, granted; oath taken and bond renewed.April 29, 1844, list of claims against estate filed, amounting to $150.April 30, 1844, account filed; publication of notice proved; account approved; administration prolonged; oath taken and bond renewed.September 28, 1844, petition by Baxter, administrator, for order of partition of the assets among the creditors.September 30, 1844, order granted; June 30, 1845, final account filed; publication proved, and administrator discharged.July 28, 1845, on petition of George Elliott letters of administrationde bonis non issued to him; oath and bond; inventory and appraisement, not including the land in controversy in this suit.July 30, 1845, petition of William J. Maynard, a creditor, for an order of sale, to satisfy a judgment recovered in the district court of Matagorda county, March 3, 1845, against William Baxter, administrator of Silsbee.Order granted.October 8, 1845, account of sales confirmed.October 28, 1845, petition and order for sale to pay debts; December 2, 1845, return of sale.August 11, 1846, appraisers appointed.October 6, 1846, inventory and appraisement filed, consisting of one-third of a league of land in Travis county, 1,482 acres, $1-8 per acre, $185.25.February 5, 1852, petition to Archilaus Silsbee and Howard Silsbee, brothers of Albert Silsbee, for probate of the will of the latter; February 23, 1852, proof of publication; February, March and April terms, continued, ordered to be probated, June 1, 1852.The will was a letter written November 23, 1835, which the deceased, being about to start on hazardous service, wrote to one of his said brothers, in it saying he left his property to his two brothers, Archilaus and Howard.January 17, 1853, same parties petitioned again for probate of same will, and at January term, forms of probate of the will were repeated.March 1, 1853, petition by Archilaus Silsbee and Howard Silsbee for the removal of George Elliott as administrator, and the appointment of Edward A. Pearson as administrator with the will annexed.March 2, 1853, Elliott removed; same day petition of Pearson to be appointed administrator pro tem.; same day Pearson appointed administrator pro tem. with authority, among others, to bring suit for the property in controversy in this suit.Oath and bond.February 28, 1853, petition by Pearson for general letters.March 28, 1853, petition granted; appraisers appointed; oath taken, bond filed; inventory and appraisement, including, among other property, the land in controversy, appraised at $8,000.

The plaintiff then gave in evidence a patent to Albert Silsbee for the land in controversy, dated February 5, 1841; and rested his cause.

The intervenors then proved by three witnesses that they knew Albert Silsbee well for many years before his death; that he had a permanent home in Matagorda county, where he followed farming and stock raising; that he was temporarily absent, locating lands, when he was killed by the Indians, about where the city of Austin now is, or above; that he had told one of the witnesses that he was going to follow locating lands; had some lands to locate for one witness, and told him he would return, when he left, a short time before his death.

The defendant then offered in evidence the transcript from the records of the county court of Bastrop county, of the orders and proceedings had in the administration of the estate of Albert Silsbee, in said court, which was read by permission of the court, with the exception of the return of sale made by James A. Poage, as attorney of Reese, administrator, etc., and the orders thereafter made by the court in reference to said sale, as set forth in defendant's bill of exceptions:

Petition of Charles K. Reese, to the chief justice of Bastrop county, stating that Albert Silsbee and Milton Hicks, both citizens of your said county, were recently cruelly massacred by the Indians; that said decedents left a large amount of unsettled business on hand; that they departed this life intestate.He would therefore pray that he be appointed administrator, etc.Date...