Cain v. Haas

• Decision Date: 01 January 1857
• Citation: 18 Tex. 616
• Parties: JOHN J. CAIN v. JOHN HAAS.
• Court: Texas Supreme Court

18 Tex. 616

JOHN J. CAIN

v.JOHN HAAS.

Supreme Court of Texas.

1857.

There can be no doubt of the right of the defendant to put in issue the authority of the plaintiff to sue as administrator; and to bring before the court the proceedings of the probate court, to show the absence of a legal and valid appointment.

Where A, being about to die, delivered his money to B, with the request that he should pay the expenses of his last illness and his funeral expenses, and remit the balance to A's mother, which B promised to do; and after A's death, a controversy arose between B and a creditor of A, as to the right to administer, which resulted in the issue of letters of administration to the creditor, from which B did not appeal; but B being sued by the administrator to recover the money delivered to him by A, prayed a certiorari and revision of the action of the county court in the appointment of the administrator, and that the suit in the meantime proceed no further; quere, whether the suit would be suspended for the purpose of making such revision, or whether it would be made if a copy of all the proceedings were filed, so that the revision would involve no delay.

The administrator excepted to the answer, on the ground that the question of the right to the administration has already been adjudicated, and could not be put in issue in this suit; the case was submitted to the judge, without a jury, “on the record and the evidence;” judgment for the plaintiff; held that there was no action on the exceptions; that they must be considered as waived, etc.

It seems that a suit cannot be sustained by an administrator (except an administrator pro tem. appointed in conformity to the statute) who has been appointed without notice, if the objection be properly taken by plea in abatement.

After the next of kin and the principal devisee and legatee, the statute enjoins upon the court the duty of appointing as administrator, such proper person as will accept and qualify; it gives no preference to a creditor over any other suitable person.

The county court has no authority to annex as a condition to the grant of administration to A, that he shall pay the costs of a pro tem. appointment, or a privileged claim, or any other condition except such as are provided by law.

Appeal from Harris. Tried below before the Hon. Peter W. Gray.

On the 19th day of September, 1854, one Charles H. Howard died intestate, at the house of the appellee, in the city of Houston, leaving no children, and no relations in this state. On the next day appellee filed his petition in the county court of Harris county, alleging that he was a large creditor of the said intestate, for boarding, washing, lodging, nursing, and other attendance, and articles furnished, during the last illness of said intestate, also for his funeral expenses, which petitioner had ordered to be made at his expense; wherefore, petitioner prayed for letters of administration, and for letters of administration pro tem. for certain purposes. Same day said appellee was appointed administrator pro tem. of said intestate, with power to collect assets of deceased, and to present and collect claims due the deceased, upon giving bond in the sum of $2,000. Bond given and oath taken same day.

On the 25th of same month, the appellant filed a protest against the appointment of the appellee, alleging that it was not necessary to appoint an administrator pro tem., nor one in chief, for that there were no debts against said estate, except the debts of last sickness, which could have been paid by the undersigned, without administration, as the deceased, before his death, called upon the undersigned and placed in his possession the sum of $470 in money, and a draft on the Bank of Louisiana for $70, with a request if he should die, so pay all his expenses, collect all his claims, and send them with the money to his mother in Baltimore; and he further alleges that this trust he is willing now to carry out, and intends to carry it out unless prevented by judicial decision of this court; and he says that if administration is at all necessary, he is the proper person to have it, as it was the desire of the deceased; he also alleges that he is more competent to discharge the duties of administrator than the said Haas; that he is competent and able to give bond; wherefore he prays that the letters of administration pro tem., issued to said Haas, be revoked, and, if administration is necessary, that he may be appointed.

On the 27th of same month appellee filed an inventory and appraisement, consisting of wearing apparel, valued at $85.50; claim against appellant for cash $470, for a draft on bank at New Orleans, $70; some papers and claims to land and pay from the United States government, taken possession of by appellant, value unknown.

At September term, there not having been time to make publication of the application of appellee, for letters of administration in chief, his letters pro tem. were continued to next term.

At October term, on the 3d of November, appellant amended his opposition by alleging that appellee was at the time of his application and still is a citizen of Hanover, one of the states of the German Confederacy, and an alien to the United States and the state of Texas. At the same term, November 4th, appellee filed a report as administrator pro tem., in which he claimed a landlord's lien on the property of the estate in his possession, stated that appellant refused to deliver to him the property of the estate which was in his possession; that he had, since last term, paid out the sum of $20 for legal advice and services connected with the interest of said succession; that he had filed a petition for an order of sale at previous term, to pay privileged debts, which had not been acted upon; prayed that his acts be confirmed, that his costs and expenses be allowed him, and that the court would appoint an administrator in chief as prayed for by him.

At same term, order of court as follows:

In this estate, it appearing to the court that the applicant, John Haas, has properly applied for and been appointed administrator pro tem., and faithfully conducted his administration, and whereas his application for letters in chief were duly and legally filed, whereby he would have been entitled to appointment, but that the contestant has shown to the court that the deceased, in his life-time, selected the said contestant, John J Cain, to take charge of his funds, and, in the event of his death, to remit the same, after paying his debts, to the mother of the deceased: It is ordered, adjudged and decreed by the court that, in the event of the said J. J. Cain paying the claim of the said Haas for boarding, attendance, etc., now filed in this court, for the sum of $60.25, and the further sum of $35 for burial expenses, paid by him, Haas, to William Rossell, and also the sum of twenty dollars for the counsel fees, paid by the said Haas to Tompkins & Thompson, together with the sum of ten dollars to include said Haas' commissions and extra compensation for attending to said estate; and provided also that said Cain shall allow and pay all costs of court, incurred in said pro tem. administration and in this contest; then, and in that event, the said Cain is and shall be appointed administrator in chief, with ordinary powers, etc. But if the said Cain shall refuse or neglect so to do, and to qualify within twenty days from the date of this order, his application and contest shall be dismissed at his costs, and the application of said Haas shall stand as if no protest had been filed, or trial had, and subject to the future action of the court. From which judgment and orders John Haas gave notice of appeal.

Appellee's account against the estate, was authenticated by his affidavit, and filed on the 4th of November.

On the 7th of November appellant filed his bond (no approval thereof) and oath. Next day filed inventory cash $470; draft on bank...