Fisk v. Norvel

Decision Date01 January 1852
Citation9 Tex. 13
PartiesFISK AND OTHERS v. NORVEL, ADM'R.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

It is contended by the appellants that there is no such administration known to our laws as that of administration pendente lite. However that might be under the laws in force prior to the act of 1848, yet by that act provision is made for the appointment of an administrator under the designation of administrator pro tem. for substantially the same purposes and with the like powers and limitations as those of an administrator pendente lite. The designation of the administration by the terms pendente lite is not fatal to the grant; but the latter terms, being those employed in the statute, should be used by the court from which the letters issue.

In 1839 all the property of a decedent vested immediately in his heirs. The heirs had the privilege of accepting the estate with or without the benefit of inventory; if accepted without inventory there was no necessity for the appointment of an administrator, for the heirs became unconditionally liable for the payment of the debts.

By the law now in force the whole estate vests in the heirs, subject, with certain exceptions, to the payment of his debts; but upon the issue of letters testamentary or of administration the executor or administrator has a right to the possession of the estate as it existed at the death of the deceased, in trust for the disposition of the same under the provisions of the act. (Hart. Dig., art. 1221.) (Note 1.)

When a succession has once been administered and closed the effects are, by operation of law, restored to the heirs; they have the full ownership, with all the rights of control, disposition, and actions for its recovery and possession, and the Probate Court has no authority to reopen the succession. (Note 2.)

It may be proved in a collateral proceeding that the Probate Court had no jurisdiction; for example, that the person was not dead, or that the estate had been fully administered and closed; but not that the court acted irregularly or erroneously upon a subject-matter properly within its cognizance. (Note 3.)

Where administration was granted in 1839, and the administrator filed his final account in 1848, and it appearing to the court that the estate had been fully administered, it was ordered that the said account current be received and recorded and said succession closed, and that the administrator be fully discharged upon his presenting to the court a receipt showing that the effects of the estate remaining in his hands had been passed over to the heirs of the deceased or their legal representatives: Held, that the succession, if open for any purpose, was merely open for the formal discharge of the administrator on production of his receipt from the heirs; that the property of the succession vested immediately in the heirs; and that the Probate Court had no jurisdiction to appoint an administrator.

Appeal from Williamson. Suit by the appellee, as administrator pendente lite of the estate of Milton Hicks, against the appellants to recover a tract of land. There was a motion to dismiss; a demurrer; general denial; special verdict; judgment for the plaintiff; motion in arrest of judgment overruled. The other facts, so far as material, will be found in the opinion of the court.

Fisk and Armstrong, for appellants.

Oldham & Marshall, for appellee.

HEMPHILL, CH. J.

The appellee, Norvel, as administrator pendente lite of one Milton Hicks, deceased, sued the appellants for the recovery of a tract of land. One of the principal questions in the cause, and the only one which I shall examine, is whether the plaintiff, by virtue of the grant of administration pendente lite, had lawful authority to bring the action, or whether the grant was null and void, and conferred no right to represent the interests of the deceased.

The facts of the case, as affecting this question, are that Milton Hicks departed this life in 1839; that administration in the same year was granted to Charles K. Reese, and continued in him till December, 1848, when his account with the estate for final settlement was filed, and it appearing to the court that the estate had been fully administered, it was ordered that the said account current be received and recorded, and said succession closed, and that the administrator be fully discharged upon his presenting to the court a receipt that the effects of the estate remaining in his hands had been passed over to the heirs of the said deceased or their legal representatives. Subsequently, in January. 1850, letters of administration pendente lite were granted by the same court to the appellee, but there is no evidence showing upon what facts such grant was obtained.

It is contended by the appellants that there is no such administration known to our laws as that of administration pendente lite. However that might be under the laws in force prior to the act of 1848, yet by that act provision is made for the appointment of an administrator under the designation of an administrator pro tem. for substantially the same purposes and with the like powers and limitations of an administrator pendente lite. To authorize the grant of either there must be a contest pending respecting the probate of a will or the right of administration. On the conclusion of the suit the grant, whether denominated pendente lite or pro tem., is terminated. (Art. 1137, Dig.; 1 Williams on Executors, p. 409.) The designation of the administration by the terms pendente lite instead of pro tem. is not fatal to the grant; but the latter terms, being those employed in the statute, should be used by the court from which the letters issue.

It being determined then that the grant of limited administration, described as pro tem. in the 28th section of the statute, (art. 1137,) would not be rendered void by its being designated pendente lite, the question arises whether, under the facts of this case as alleged and proven, the Probate Court had any lawful authority to grant such administration, whether it be under the description of pendente lite or pro tem.

It appears from the record that letters of administration upon this estate had been granted more than ten years previous to the commencement of this suit to Charles K. Reese, and that more than one year antecedent to the grant of this administration pendente lite the said Reese had filed his account current for final settlement with the estate, that the same was received and approved, and the succession having been fully administered, as stated in the decree of the court, was ordered to be closed, and the administrator discharged on his producing a voucher that the effects of the deceased had been passed to the representatives of the deceased. It appears from this decree that all the purposes legally within the scope of administration had been effected; that the necessity for continuing the succession open had ceased, and it was ordered to be closed. If open for any...

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24 cases
  • Darden v. Boyette
    • United States
    • North Carolina Supreme Court
    • October 30, 1957
    ...Lowe, 74 Ga. 34; Andrews v. Brumfield, 32 Miss. 107; Woerner's American Law of Administration, 3rd Ed., sec. 456. See also: Fisk v. Norvel, 9 Tex. 13, 2 Am.Dec. 58. In the elaborate note attached to Crean v. McMahon [106 Md. 507, 68 A. 265], in 14 L.R.A.,N.S. 798, in which many cases are ci......
  • National Surety Corporation v. Jones
    • United States
    • Texas Court of Appeals
    • March 7, 1941
    ...to order further administration on said estate, see, in addition to authorities above cited, Francis v. Hall, 13 Tex. 189; Fisk v. Norvel, 9 Tex. 13, 58 Am.Dec. 128; Chandler v. Hudson, 11 Tex. 32; Hurt v. Horton, 12 Tex. 285; Waldrup v. Jones, 23 Tex. 489; Withers v. Patterson, 27 Tex. 491......
  • Leonard v. Childers
    • United States
    • Oklahoma Supreme Court
    • October 9, 1917
    ...And said county court was thereafter without jurisdiction to appoint a guardian for the person and estate of said minor. Fisk v. Norvel, 9 Tex. 13., 58 Am. Dec. 128. ¶12 It is contended that Ret Millard was incompetent to hold the office of guardian by reason of the fact that he was at the ......
  • Easterline v. Bean
    • United States
    • Texas Supreme Court
    • April 21, 1932
    ...to be administered is not dead, and that the probate court had no jurisdiction thereof, and any act done is totally void. Fisk v. Norvel, 9 Tex. 13, 58 Am. Dec. 128; Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643; Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329. Furthermore, it has long......
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