Edwin Alexander's Heirs v. Maverick

• Decision Date: 01 January 1856
• Citation: Edwin Alexander's Heirs v. Maverick, 18 Tex. 179 (Tex. 1856)
• Parties: EDWIN ALEXANDER'S HEIRS v. SAMUEL A. MAVERICK.
• Court: Texas Supreme Court

18 Tex. 179

EDWIN ALEXANDER'S HEIRS

v.SAMUEL A. MAVERICK.

Supreme Court of Texas.

1856.

The statute of 1843 (Hart. Dig. 1067) did not prohibit the probate court from ordering a sale of the property of an estate on the petition or application of the administrator.

This question was not necessarily involved in the decison of the case of Miller v. Miller (10 Tex. 319), on which counsel for the appellant rely, and was not decided by the court in that case.

It has been assumed, generally, that a petition was necessary to give jurisdiction to the probate court to order the sale of the property of deceased persons; or to call into exercise the jurisdiction of the court over the subject matter. But the question has not been necessarily involved in the decision of any case, and has not been authoritatively decided.

It does not affirmatively appear by the record in this case, that the application (by an administrator for an order of sale) was not made by a petition in writing. But if it did so appear, I apprehend it could not, on principle, be held to defeat the probate court of its jurisdiction to order the sale on the application of the administrator; nor could the purchaser be affected by the irregularity, if such it was, in making the order. He was not required to look beyond the judgment of a court of competent jurisdiction. 27 Tex. 73.

It would seem that the probate courts are courts of general jurisdiction over the estates of deceased persons, and that all presumptions are in favor of the regularity of their proceedings, which cannot be impeached except for fraud or by showing that in the instance of that estate, the jurisdiction did not attach; but on the latter exception see Burdett v. Silsbee, 15 Tex. 604. 15 Tex., 98, 100;12 Tex. 440;28 Tex. 732.

An entry that the final account of an administrator be admitted and filed, and that he be discharged upon paying costs, is not such a final close of the administration as will defeat the title of a bona fide purchaser at a sale by such administrator, upon order granted eight months afterwards.

This case distinguished from Hurt v. Horton, 12 Tex. 285. 10 Tex. 319; 18 Tex. 179; 21 Tex. 404, 577.

Appeal from Travis. Tried below before Robert J. Townes, Esq., appointed by the parties.

Suit by appellants, as heirs of Edwin Alexander, deceased, against appellee, commenced August 19, 1854, in Bexar county, and afterwards removed by change of venue to Travis, to clear the title to three and one-third leagues of land, describing them and setting forth the facts. Answer by defendant, setting up title in himself.

A jury was waived, and the cause submitted to the court upon the following evidence: The plaintiffs proved that Edwin Alexander died in 1838, being at the time a resident of Bexar, and the owner of the lands in controversy, and that plaintiffs were his nephews and nieces; that he had no wife or child, and that he recognized the plaintiffs as his heirs in his life-time. The defendants gave in evidence a transcript from the records of the probate court of Bexar county, from which it appeared as follows: At January term, 1839, James McGloin was appointed administrator of said Alexander's estate.

The proceedings of the administrator and the probate court down to August term, 1841, showed very clearly that there was very little if any cause for administration, to pay debts, and that the administrator was consuming the estate by the expenses of administration. The proceedings after that were as follows:

Probate court, August term, 1841. The honorable the probate court in and for the county of Bexar, met at the court, house in the city of San Antonio on the 30th day of August, 1841. Present John S. Simpson, judge of probates; Franklin L. Paschal, sheriff; Thos. H. O'S. Addicks, clerk.

When the court was opened in the ordinary form and the causes on the docket disposed of as follows, to wit:

Estate No. 52. Inventory and appraisement of a piece of property belonging to the estate of Edwin Alexander, deceased, together with an application by the administrator for an order of sale, and the order of the judge of probates, dated 10th inst., during vacation of this court, that the administrator proceed and sell, as required by law, so much of the property of said estate as may be sufficient to meet the claims against the same, filed this day in open court.

Republic of Texas, county of Bexar. To the honorable the judge of the probate court:

Your petitioner, James McGloin, administrator of the estate of Edward Alexander, deceased, represents that he has collected, so far as he believes to be practicable, the amounts that were due said succession, all which are insufficient to discharge the claims against the same; that there is property in his hands belonging to said estate as follows: a certificate for one league and labor of land, and the deceased's headright of twelve hundred and eighty acres, as will be found by reference to the inventory and sale bill, filed in the office of the clerk of the probate court; also a piece of property lately discovered and which is not placed on the original inventory, as I had no account of it, the titles being lost, to wit: a lot of land on the west side of San Pedro creek, calling for forty varas fronting on said creek and running back sixty varas, the title to which is spread on the county record book D, page 86, dated 8th of September, 1837, conveyed by Francisco Zepida to said Edwin Alexander, deceased, for which property your petitioner prays an order of appraisement. And the time allowed for the settlement of successions having been, by permission of the court, already prolonged, and as no benefit can result from further delay, your petitioner prays that orders may be given him to make sale of the property before mentioned, or as much thereof as will satisfy all claims against said estate, that the business of said succession may be finally settled, and he discharged from the administration, and as in duty bound, etc. San Antonio, July 31st, 1841. James McGloin, adm'r.

Bexar county probate court, in vacation, 10th Aug., 1841. The within petition, having been duly considered by me, it is ordered that the administrator proceed and sell, as required by law, so much of the property of said estate, as may be sufficient to meet the claims against the same.

(Signature of judge.)

Here follows the appraisement of the lot on the San Pedro creek, at $25, filed Aug. 30, 1841. September term, 1841, James McGloin, administrator of the estate of E. Alexander, deceased, during vacation of this court presented a petition praying for the re-appointment of the appraisers formerly appointed to appraise the property of said estate; that they might complete the valuation of the property as returned in the inventory, together with the order of the judge of probate granting the same, also returned bill of sale of a lot of ground on San Pedro creek, and the appraisement list of the balance of the property as inventoried, filed on the 13th of September inst.

Republic of Texas, county of Bexar. To the probate judge: The undersigned, administrator of the estate of E. Alexander, deceased, would respectfully represent that in his last inventory, which he returned to the court, there was annexed a petition for the appointment of appraisers, and for an order of sale; that the court appointed appraisers, who proceeded upon the execution of their duty, but through an impression that there was but one piece of property for them to appraise, viz: a lot of land on the San Pedro creek, in San Antonio, omitted to appraise a certificate for one league and one labor of land, being the headright claim of a Captain Antonio Menchaca, and said deceased's headright claim for twelve hundred and eighty acres; and your petitioner would therefore pray that the same appraisers may be instructed to complete the appraisement of the inventory, and that he be allowed to proceed in the sale of said property until sufficient shall be disposed of to cancel the claims against the succession. And the said administrator would further state that on the first Tuesday of September inst., the lawful, judicial sale day, he offered for sale the lot of land on San Pedro creek, in conformity with the order of the court and the laws in such case made and provided, when Michel Calvo purchased the same for the sum of sixteen dollars and seventy-five cents, being more than two-thirds of the appraised value, and makes this return accordingly. San Antonio, 7th September, 1841.

(Signed by the administrator.)

Probate court, Bexar county, in vacation, 7th September, 1841. The appraisers heretofore appointed, as above stated, will appraise the balance of the property as referred to in the foregoing petition, and the administrator will make his return accordingly.

(Signature of judge.)

The undersigned, in conformity with the instructions herein named, do appraise and value the property referred to as follows, viz: one league and labor of land located on the Tardillo, the headright of Antonio Menchaca, $90.00; twelve hundred and eighty acres, deceased's headright, deposited with the San Patricio surveyor, $30.00.

(Signature of appraisers.)

October term, 1841, the title of the succession stated and entry of ““continued.” November term, 1841, same entry. Then no entry occurs until March term, 1843, as follows: Estate No. 52. In this case appeared J. McGloin, administrator of the estate of E. Alexander, deceased, and on motion of the administrator, it is ordered by the court that Wm. B. Jaques, Wm. Elliot and James Goodman be appointed to appraise the property of the estate, returned in the last inventory filed, which is not yet sold, and that the appraisement of the same be returned in ten days. It is further ordered in this case that the administrator, as aforesaid, proceed and sell the same according to law.

Probate court. April term, 1843. The honorable the probate court in and for the county...