Fort v. Fittes

• Decision Date: 19 October 1886
• Citation: 1 S.W. 563
• Parties: FORT and others v. FITTES and others.
• Court: Texas Supreme Court

Page 563

1 S.W. 563

FORT and others v. FITTES and others.

Supreme Court of Texas.

October 19, 1886.

Appeal from Upshur county.

Allen & Vesey, for appellants.

WILLIE, C. J.

This is a suit brought by the heirs of Alfred Atkinson, deceased, to recover from the sureties on the bond of his administrator, D. C. Boger, the sum of $16,000 belonging to the estate of said deceased, and alleged to have come into the hands of said Boger as such administrator, and to have been converted to his own use. Boger was dead when the suit was filed, and his estate is alleged to be insolvent. No administration de bonis non had been taken out on the estate of Atkinson, and no debts existed against it. A demurrer was sustained to the petition below, on the ground that the district court had no jurisdiction of the subject-matter of the suit, and the correctness of this ruling is the only matter before us for consideration.

Our constitution grants to the district court jurisdiction of all suits when the matter in controversy shall be valued at or amount to $500, exclusive of interest. This would, as a general rule, give the district court cognizance of a suit upon a bond to recover the amount claimed in this action. To this general rule we cannot see why an administrator's bond should form an exception. The constitution does not so provide, and there is nothing in the nature of the bond, or in its connection with the administration of an estate, which requires that redress for its covenants should be sought in another forum. The bond is conditioned for the true and faithful performance of all the duties of the administrator under his appointment. This condition is broken by a misappropriation of assets, such as is charged in this petition. A suit upon the bond in behalf of the parties to whom the wasted assets would have gone but for the devastavit, and against the administrator and his sureties, is provided for by the statute itself. In case an administrator de bonis non has been appointed, he is plaintiff in the suit. Rev. St. art. 1960. But in case there be no such appointment, and there are no debts, upon principles frequently announced in this court, the heirs or other distributees of the estate may institute the action. Giddings v. Steele, 28 Tex. 732; Bufford v. Holliman, 10 Tex. 560; Patton v. Gregory, 21 Tex. 513.

It is a suit having a contract as cause of action, and parties plaintiff and defendant. Either party may call a jury, and the judgment in the case is enforced by execution. The machinery of the district court is peculiarity adapted to the trial of such a cause, while that of the county court, when sitting in matters of probate, is not. The county court settles the accounts of executors and administrators, and, through them, transacts all business appertaining to the estates of deceased persons. But a suit upon an administrator's bond cannot be brought until he has severed his connection with the court and the estate. The court cannot then act through him, and neither he nor his sureties are subject to its orders. Hence no proceeding will lie against him in that court, nor could it under any judgment upon his bond which could be enforced. These principles were well settled by repeated decisions of this court, made under the constitution of 1845. See Ingram v. Maynard, 6 Tex. 130; Francis v. Northcote, Id. 185; Martel v. Martel, 17 Tex. 392; Ponton v. Bellows, 22 Tex. 681.

There is no such difference between the...