Clifford v. Campbell

• Decision Date: 12 January 1886
• Docket Number: Case No. 2114
• Citation: 65 Tex. 243
• Parties: V. B. CLIFFORD, GUARDIAN, v. L. W. CAMPBELL, ADM'R.
• Court: Texas Supreme Court

65 Tex. 243

V. B. CLIFFORD, GUARDIAN,

v.L. W. CAMPBELL, ADM'R.

Case No. 2114

Supreme Court of Texas.

Jan. 12, 1886.

Error from Washington. Tried below before the Hon. J. B. McFarland.

This suit originated, December, 1881, in the county court of Washington county, sitting as a court of probate. The appellant, Mrs. V. B. Clifford, as guardian of several minor children, was the holder of a claim of the third class, duly allowed, approved and classified, against the estate of T. R. Power, deceased, the same being secured by a deed of trust on lands belonging to that estate. These lands were sold by the administrator, L. W. Campbell, under an order of the county court to satisfy the lien held by Mrs. Clifford. The proceeds arising from the sale were, however, not sufficient for that purpose, and as they constituted the only assets then known to belong to the estate, the court ordered the administrator to pay all claims of the first and the second class against the estate out of this fund. Afterwards, under this order, and in conformity with a written agreement between Mrs. Clifford and the administrator, all claims of the first and the second class, aggregating $130.80, were paid out of the proceeds of the sale of the lands, and the remainder went as a credit on Mrs. Clifford's claim, leaving a balance due on the latter. Her claim was the only claim of the third class against the estate, but there were several claims of the fourth class, aggregating about $1,015.00. Subsequently other lands belonging to the estate were discovered upon which no lien existed. These lands were also sold by the administrator, and the fund realized therefrom ($710.00), being insufficient to pay in full the remaining indebtedness of the estate, was, in pursuance of an order of the court, passed September 22, 1881, distributed by him, pro rata, amongst the holders of claims of the fourth class and Mrs. Clifford. On November 26, 1881, the administrator filed his final account, showing his action in the matter of the distribution of the last mentioned fund, and asked that the same be approved by the court.

On December 2, 1881, Mrs. Clifford filed objections to the account, and prayed that it be revised and corrected, and that the administrator be required to pay to her, in preference to creditors of the fourth class, an amount, out of the proceeds of the last sale, equal to that paid out of the fund on which she held a lien, in satisfaction of preferred claims. The county court overruled Mrs. Clifford's objections, denied the order asked by her and approved the account, from which ruling she appealed to the district court. In September, 1883, the district court heard the cause on appeal, and rendered judgment therein that Mrs. Clifford and P. P. Clifford, her husband, who, pending the proceedings in that court, had been made, pro forma, a party plaintiff with her, take nothing by their suit, etc., and from that judgment they have prosecuted their writ of error.

There were eleven assignments of error, but the fourth, fifth and sixth assignments, it is believed, present the points discussed in the opinion, and are as follows:

4. The court erred in holding that plaintiff should have applied to the county court while the funds were still in the hands of the administrator, to have the assets marshalled in her favor, and that having failed to so apply, she is not entitled to recover the amount paid out by her on first and second class claims.

5. The court erred in holding that plaintiff having received a pro rata share of the money distributed amongst the creditors is estopped from demanding any additional amount from the administrator in repayment for the amount expended by her in paying off first and second class claims.

6. The court erred in holding that it is not the duty of an administrator to repay, out of funds the estate may hereafter receive, to a creditor of the third class whose special fund has been applied, in whole or in part, to the satisfaction of claims of the first and the second class, the amount so applied, in preference to creditors of the fourth class.

R. S. Parver, for plaintiff in error, that a holder of a claim of the third class, whose fund constitutes the only known property of the estate, and who pays out of such fund claims of the first and the second class, is subrogated to the rights of the first and the second class claimants, and is entitled to reimbursement, to the extent of such advancement, out of subsequently discovered property before payment of claims of the fourth class, cited: Lockhart v. White, 18 Tex. 102, 108;Wahrmund v. Merrit & Metcalf, 60 Tex. 24;Amory v. Lowell, 1 Allen, 504;...