Callahan v. Houston

• Decision Date: 14 November 1890
• Citation: 14 S.W. 1027
• Parties: CALLAHAN v. HOUSTON <I>et ux.</I>
• Court: Texas Supreme Court

14 S.W. 1027

CALLAHAN v. HOUSTON et ux.

Supreme Court of Texas.

November 14, 1890.

Appeal from district court, Hopkins county; W. C. JONES, Special Judge.

Rev. St. Tex. arts. 1877, 1878, and 1882, provide as follows: "1877. Whenever it may appear to the county judge that the interest of an estate requires the immediate appointment of an administrator, he shall, either in open court or in vacation, by writing under his hand and the seal of the court, attested by the clerk, appoint some suitable person, temporary administrator, with such limited powers as the circumstances of the case may require. 1878. Such appointment may be made either upon written application or without such application, and without citation. It shall define the powers conferred, * * *. 1882. Temporary administrators shall have and exercise only such rights and powers with regard to the estate, or such portions thereof as may be committed to their charge, as are specifically and clearly expressed in the order of the court appointing them, and any acts performed by them, as such administrators, that are not so expressly authorized, shall be void."

A. A. Henderson and E. B. Perkins, for appellant.

STAYTON, C.J.

This action was brought by C. M. and Nancy Houston, husband and wife, to recover the land in controversy in the separate right of the wife. Mrs. Houston died a short time before the trial, and C. M. Houston suggested her death, and stated that he had been appointed temporary administrator of her estate, and that, in the appointment, he was empowered to prosecute this action. It is insisted that a temporary administrator, notwithstanding the court appointing him may have authorized him to prosecute an action such as this, has no power to do so. The statute does not provide what powers a temporary administrator may exercise, but leaves this to the determination of the court or judge appointing. The appointment is required to "define the powers conferred," and we see no reason to doubt that power to prosecute such an action as this, or to perform any other act that a regular administrator might perform, may be conferred on a temporary administrator, when, in the opinion of the court or judge making the appointment, the exercise of such a power, temporarily, is necessary for the preservation or welfare of the estate. Rev. St. arts. 1877, 1878, 1882.

That it was not necessary that the suggestion of death of Mrs. Houston, or any step taken by the temporary administrator, should be through an amended petition, is too clear. The land in controversy came to C. M. Houston through a regular chain of transfer from the sovereignty of the soil, and he conveyed it to his wife, during coverture, through a deed which on its face showed that it was a gift. This made the property the separate estate of Mrs. Houston, and there was no necessity...