Campbell v. Shotwell

• Decision Date: 01 January 1879
• Citation: 51 Tex. 27
• Parties: SINGLETON CAMPBELL, ADM'R, v. J. H. SHOTWELL, EXECUTOR, &C.
• Court: Texas Supreme Court

51 Tex. 27

SINGLETON CAMPBELL, ADM'R,

v.J. H. SHOTWELL, EXECUTOR, &C.

Supreme Court of Texas.

1879.

APPEAL from Polk. Tried below before the Hon. Henry C. Pedigo.

The opinion sets out the facts.

James E. Hill, for appellant.--An administrator or an executor cannot charge the estate he represents by acknowledging a claim barred by the statute of limitations. (Moore v. Hardison, 10 Tex., 467;Moore v. Hillebrant, 14 Tex., 312; Ang. on Lim., 6th ed., pp. 294-296, and authorities cited.) And to set aside the quasi-judgment of a Probate Court approving such allowance, proceedings for that purpose must be instituted in the District Court; and if commenced in a reasonable time, and it appears (1) that the claim was barred by limitation when allowed and approved, or (2) that the claim was allowed and approved through fraud or mistake, there can be no question about setting aside the allowance and annulling the decree. (Moore v. Hillebrant, 14 Tex., 315;Moore v. Hardison, 10 Tex., 473;Henderson v. Ayres, 23 Tex., 100, 101;Jones v. Underwood, 11 Tex., 116;Pitner v. Flanagan, 17 Tex., 7.)

“If a debt or claim is barred by statute, it is no longer a debt of the estate or claim against it; and to permit the representative to admit its validity on presentation, would be to allow him to create a debt against the decedent.” (Moore v. Hardison, 10 Tex., 473.)

Moore v. Hardison and Moore v. Hillebrant, supra, are decisive of this case. No subsequent decisions have shaken the rule therein laid down in the slightest degree. In Henderson v. Ayres, supra, the rule was acknowledged, and an allowed and approved claim stricken from the liabilities of an estate because the proof showed that the claim was barred by limitation when allowed and approved. Appellee relies on Eccles v. Daniels, 16 Tex., 136;Mosely v. Gray, 23 Tex., 496;Brown v. Franklin, 44 Tex., 564.

In Mosely v. Gray nothing but the note was in evidence; no evidence was adduced, or attempted to be produced, showing upon what facts the administrator and the court based their action, which may have been fortified by a written acknowledgment, as provided by statute. (Paschal's Dig., art. 4617 a.) In Eccles v. Daniels the court held that the claim involved was not barred as a matter of fact.

Brown v. Franklin is not in point. The opinion is misleading in adopting the reporter's head-note in Murphey v. Menard, 11 Tex., 673, which the opinion of the case does not warrant. (14 Tex., 67;Johnson v. Morris, 45 Tex., 465.) From the above authorities, it is well settled that an executor or administrator cannot, by allowing a barred claim, create a valid demand against the estate he represents. By no known law or rule of construction can the clause in N. Bailey's will, wherein he directs his executors “To pay off and discharge all my lawful and just debts, * * * directing my said executors to require all claims against my estate to be supported by affidavit, and to disregard the statute of limitations as to the principal, but not as to the interest upon such indebtedness,” be held to comply with Paschal's Digest, art. 4617 a. “‘Such indebtedness” refers to “lawful and just”; it cannot be warped to refer to “all claims.” A “lawful” debt is one that cannot be defeated by any statute or rule of law. A claim is not “just” when by the very acts of the claimant he admitted its payment, (1) until barred by limitations; (2) until the maker thereof died; (3) until he, (the claimant,) by virtue of his fiduciary character, became possessed of decedent's papers and evidence of liquidated claims. A claim barred by the statute of limitations, sought, in ignorance of the statute, to be revived by an indorsement of payment ($22.37) made ten days subsequent to testator's death and two months prior to the time his executor qualified, indorsed by the dual executor and claimant, is not “““just.” (Ang. on Lim., 6th ed., secs. 11, 171, and authorities cited.)

The statute of limitations is a statute of repose--a wise and beneficial law; not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. (Ang. on Lim., 225.)

Article 4617 a of Paschal's Digest cannot be explained away. (Ang. on Lim., sec. 212, and note 3.) The acknowledgment must be unqualified. (Ang. on Lim., pp. 225, 226, 230, 241, 247.) It should appear in all cases that the promise relates to the identical debt, and must specify the particular debt. (Ang. on Lim., secs. 239, 238, and note 4.)

The acknowledgment of the debt must be plain, unambiguous, express, and so distinct and palpable in its extent as to preclude hesitation. (Ang. on Lim., 6th ed., p. 229.) A new promise must be of the specific debt, or must distinctly include it; for if wholly general and undefined it is not enough. A testator who provides for the payment of his debts generally, does not thereby make a new promise as to any one of them. (Pars. on Law of Bus., 265; Smith v. Fly, 24 Tex., 353;Leigh v. Linthecum, 30 Tex., 100;Aldrete v. Demitt's Heirs, 32 Tex., 576;Coles v. Kelsey, 2 Tex., 555;Webber v. Cochrane, 4 Tex., 36;Bell v. Morrison, 1 Peters, 351.) “Our statute (4617 a, supra) was designed to put an end to the almost infinite variety of decisions as to what amounted to a subsequent promise.” (Coles v. Kelsey, 2 Tex., 556.) “Not by changing the rules of construction, but merely to require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony of witnesses.”“There must be no strained constructive acknowledgments, or nice refinements of interpretation designed to evade the provisions of the statute.” (Webber v. Cochrane, supra, and authorities cited.)

The intention of the testator must control, so far as it can be gathered from the will itself and is not inconsistent with the rules of law. (1 Red. Law of Wills, 4th ed., secs. 24, 30 c.) If the directions in the will are so vague as not to enable the judicial expositor to ascertain with legal certainty what thing was intended, the will, pro tanto, is void for uncertainty. (Red. Lead. Cas. on Wills, 574.)

The acts of W. H. Shotwell, as executor of N. Bailey, deceased, and all orders and proceedings of the Probate Court concerning said estate, made in said executor's lifetime, are void.

1st. The directions in N. Bailey's will as to the special powers of his executor were not approved by the court. (Laws 12th Leg., 1st Sess., secs. 155-160, p. 163.)

2d. The executor, W. H. Shotwell, having failed to accept the trust as provided by statute, it was then at an end, and an administrator with the will annexed should have been appointed by the court. (Langley v. Harris, 23 Tex., 564.)

An executor derives his authority from the will; an administrator, from the court. (Toller on Executors, sec. 3, p. 95.) An executor cannot elect from whom his authority shall be derived. He cannot, by renouncing the special powers delegated to him by the will, resort to the court as his authority when it suits his convenience to create a quasi-judgment, and thus, as administrator, accomplish what he could not as an executor. He cannot accept the portion of will in his favor and renounce that which is against him; he is held to a strict execution of the powers delegated by the terms of the will. “They are incapable of admitting any equivalent or substitution; for the person who creates the power has the undoubted right to create what checks he pleases to impose to guard against a tendency to abuse. The courts have been uniformly and severely exact on this point.” (4 Kent's Comm., 12th ed., pp. 330, 343, 344, and note c, 346.)

Appellee's counsel construes the clause quoted from N. Bailey's will into “a devise to classes.” He cites 1 Maddox's Chancery, p. 556, to show that a testator in making his will is a law unto himself. To avoid Paschal's Digest, art. 4617 a, “‘construction” is invoked, and the testator's direction as to the payment of his debts is transformed into a gift of real estate. Webber v. Cochrane, supra, disposes of this idea of avoiding the statute. As to the authority cited by appellee, it is against him. “Courts are bound to carry the will into effect, provided it is consistent with the rules of law; for men's deeds and wills by which they settle their estates are the laws that private men are allowed to make, and they are not to be altered even by the king in his courts of law and conscience.” (Mad. Ch., supra.) Yet this honorable court is asked to “alter” N. Bailey's will and create for the deceased, by construction, “a devise to classes.”

When a suit may be maintained in the personal right of a party, the addition of administrator, guardian, &c., is merely descriptio personœ. (Hopkins v. Upshur, 20 Tex., 89;Hall v. Pearman, 20 Tex., 170;Rider v. Duval, 28 Tex., 624.) “As administrator” may be rejected as surplusage, since in whatever character he recovers judgment, the legal title is in him, and he has the right to sue in his own name. (Nelson v. Bagby, 25 Tex. Supp., 307;Gayle v. Ennis, 1 Tex., 184;Butler v. Robertson, 11 Tex., 142.) An issue cannot be raised on such personal description, (Claiborne v. Yoeman, 15 Tex., 45,) and need not be noticed in pleading. (McKinney v. Peters, Dallam, 545.) A debt due to one in a fiduciary character is in fact due to him in his own right. (Freem. on Judg., 2d ed., sec. 217, p. 227.) In actions against a personal representative on his own contracts and engagements, though made for the benefit of the estate, the judgment is de bonis propriis, and he is, by every principle of legal analogy, to answer it with his person and property. (Ang. on Lim., 6th ed., p. 294.)

The exhibit of W. H. Shotwell, guardian of Frank Harrell filed February 28, 1870, shows the whole...