Chapman v. Brite

• Decision Date: 18 October 1893
• Citation: 23 S.W. 514
• Parties: CHAPMAN et al. v. BRITE.
• Court: Texas Court of Appeals

23 S.W. 514

CHAPMAN et al. v. BRITE.

Court of Civil Appeals of Texas.

October 18, 1893.

Appeal from district court, Atascosa county; D. P. Marr, Judge.

Action by W. F. Brite, administrator d. b. n., etc., of P. O'Neill, deceased, against J. J. Birmingham, principal, and John Chapman and others, sureties, on the bond of Birmingham as administrator. From a judgment in plaintiff's favor, the sureties appeal. Reversed.

J. M. Eckford, W. J. Bowen, and W. H. Smith, for appellants. C. A. Culberson, for appellee.

Statement of the Case.

NEILL, J.

This suit was instituted by appellee as administrator de bonis non of the estate of P. O'Neill, deceased, against J. J. Birmingham as principal, and John Chapman, R. A. Goins, and W. H. Chapman as sureties, on the bond of Birmingham as administrator of said estate. The plaintiff alleged that he was administrator de bonis non of the estate of P. O'Neill, deceased, duly appointed by the county court of Atascosa county at the February term, 1890; that J. J. Birmingham was duly appointed administrator of said estate in November, 1888, and gave bond as such administrator, and that afterwards, on the 3d day of January, 1889, after citation to file a new bond, he executed and filed a new bond in the county court of said county as administrator of said estate in the sum of $8,000, payable to the county judge of Atascosa county and his successors, with John Chapman, R. A. Goins, and W. H. Chapman as his sureties, conditioned that the said Birmingham should well and truly perform all the duties required of him under said appointment; that, after filing said bond, there came into Birmingham's hands as administrator of said estate personal property, money, and notes, specifying the various items and value, which he unlawfully wasted and converted to his own use, to the damage of the estate in the sum of $7,500; that on the 27th of September, 1889, an order was made by the county judge of Atascosa county requiring Birmingham to file a new bond within 20 days, and that on the 9th day of November, 1889, he having failed to file a new bond, as required by the order, he was by said court removed from further administration of said estate, and required to file his final report and make his final settlement as administrator on or before the next regular term of said court, and turn over to the administrator de bonis non all assets in his hands belonging to said estate; that he failed to comply with said order. The petition further alleged that Birmingham's residence is unknown, and that he cannot be found; that appellee had made demand on said sureties on his bond to make good the default of their principal, and that they refused to do so. The defendants John Chapman, R. A. Goins, and W. H. Chapman answered by pleading — First, to the jurisdiction of the court; second, in abatement alleging the illegality of the appointment of plaintiff as administrator of P. O'Neill, and want of authority in the court to make such appointment; third, the nullity of the appointment of plaintiff as administrator, and want of legal capacity to sue. Said defendants then excepted generally and specially to plaintiff's petition and answered by a general denial, and by specially denying (1) that plaintiff was legally appointed administrator of O'Neill's estate; (2) plaintiff's legal capacity to sue; (3) that J. J. Birmingham is a nonresident of this state, or that his residence cannot be ascertained by reasonable diligence; (4) that he is insolvent; (5) that certain items specified in plaintiff's petition were owned by the intestate, or that certain other items were destroyed, wasted, converted, misapplied, or otherwise improperly used by Birmingham; (6) that Birmingham ever collected $4,500.60 from Musgrave, Mansfield, and Dorsey, the proceeds of the sale of sheep, or misapplied the proceeds of the note given therefor, and alleged that said note had never been paid. The said defendants specially pleaded that on the application of his sureties, heard on September 27, 1889, Birmingham was required to give a new bond within 20 days from the date of said order, which suspended all his functions as administrator of said estate until said order was complied with, which order was of record, and notice to the purchaser of said sheep and his sureties on said note, and, if there was an arrangement made between Birmingham and the purchaser of said sheep and his sureties on said note, the same was made subsequent to the date of said order of the county court, and was illegal and void, and did not relieve the makers from liability on said note, and that defendants are not liable for the amount for which the sheep were sold; that one John Dorsey is indebted to Birmingham, as administrator of said estate, in the sum of $1,800, in respect to or growing out of the sale of said sheep, which amount is and was a part of the assets of said estate, and should be deducted from any claim plaintiff may have against said Birmingham in connection with the sale of said sheep, or the proceeds of the same. Defendants pleaded as setoffs, and that certain sums of money, giving amounts, were expended by Birmingham to take care of the property of the estate and in paying the current expenses of running the ranch, and that certain sums were due Birmingham for personal services in the care and preservation of the property of the estate, and for attorney's fees, commissions and debts of said estate paid by Birmingham. The plaintiff discontinued as to Birmingham. And on the 1st of October, 1890, the plea to the jurisdiction and exceptions of defendants were overruled, and the case was tried by a jury, and verdict returned in plaintiff's favor against the defendants John Chapman, R. A. Goins and W. H. Chapman for $5,652.60, upon which the judgment was rendered from which this appeal is prosecuted.

Conclusion of Facts.

(1) The appellant, W. T. Brite, was appointed by the county court of Atascosa county on the 8th day of February, 1890, administrator de bonis non of the estate of P. O'Neill, deceased, and qualified as such administrator on the 15th day of February, 1890, upon which day letters of administration were issued on said estate by said court. (2) J. J. Birmingham was duly appointed administrator of the estate of P. O'Neill by the county court of Atascosa county on November 9, 1888, and that on said day he qualified as such administrator. (3) On January 3, 1889, by an order of the county court of Atascosa county, Birmingham was required to file a new bond as such administrator, and on the same day he, as administrator of said estate, with John Chapman, W. H. Chapman, and R. A. Goins as sureties, filed in said court a bond payable and conditioned as required by law in the sum of $8,000, which bond was of that date, and then duly approved. (4) That as such administrator he received property belonging to said estate, exclusive of realty, of the appraised valuation of $4,070.50. (5) That the property of the above valuation included 3,600 sheep, appraised at $3,300, of which 3,462 head were sold by Birmingham under an order of court of February 13, 1889, on a credit of six months, for $4,500, to Bennett Musgrave, for which sum he executed his note, bearing interest from maturity at 10 per cent. per annum, with F. M. Mansfield and Dorsey as sureties to said administrator. (6) That he sold by virtue of an order of court certain other property, which was appraised in the inventory at $150, for $369.75, for which a note was executed. (7) That on the 17th day of September, 1889, John Chapman and R. A. Goins filed their petition in said county court, praying that Birmingham be required to give a new bond, in which petition they alleged that his bond was insufficient in amount; that the character of the property had changed since they became his securities, and that said administrator had removed, or was about to remove, his property from the state; that he had violated the conditions of his bond, and was incompetent and unfit to attend to the business incident to the estate, and was not conducting the same according to law. Upon this application the court found that Birmingham's bond was wholly insufficient in amount to protect and secure the state, and on September 27, 1890, ordered that he enter into a new bond in the sum of $12,000 within 20 days from that date. (8) At the November term of said court an order was entered removing Birmingham as administrator of O'Neill's estate, and requiring him to make final settlement of the estate at the next term of court, and to turn over to the administrator de bonis non assets in his hands belonging to said estate. (9) That, on the day judgment was rendered, the assets of the estate, exclusive of the realty which came into Birmingham's possession as administrator of said estate, if accounted for, would have been worth $7,332.25. In this estimate the amount realized on the sale of property in excess of its appraised value, property not inventoried, and the interest on the notes given for the purchase money of property sold by Birmingham, are considered. (10) That the appellee never received any of the property, or notes of the estate except the note of $369.75, which he obtained from Birmingham's attorney. That claims allowed and approved were paid by said Birmingham, aggregating $688.80. (11) That all the other...