Fred. Martel's Adm'r v. Martel

• Citation: 17 Tex. 391
• Parties: FRED. MARTEL'S ADM'R v. GUS. MARTEL AND OTHERS.
• Decision Date: 01 January 1856
• Court: Supreme Court of Texas

17 Tex. 391

FRED. MARTEL'S ADM'R

v.GUS. MARTEL AND OTHERS.

Supreme Court of Texas.

1856.

An administrator de bonis non can maintain a suit against the former administrator and the sureties on his bond for the value of assets which came to the hands of such former administrator, and which he converted to his own use and failed to account for. [6 Tex. 185;11 Tex. 673.]

Appeal from Fayette. Tried below before the Hon. Thomas H. Duval.

The petition alleged that the said Gustavus Martel violated the condition of his bond as administrator as aforesaid, in this, that he did not make out and return a full inventory and appraisement of all the estate of said testator as required by law. Petition charged that after the death of the said testator there were divers goods and chattels belonging to said estate that came into the hands of the said Gustavus, to wit: one horse, worth $50; another, worth $75; one barrel of whisky, worth $50; two barrels of flour, worth each $10; one sack of coffee, worth $20; two sacks of salt, worth $5 each; one barrel of sugar, worth $30; one mantel clock, glass case, worth $50; a large quantity of linens, consisting of table-cloths, towels and a variety of other linen articles, worth in all about $100; a great variety of ornamental pictures, worth $50; two feather beds, with pillows, worth each $40; bed clothing of all kinds, worth $40; two bedsteads, worth each $10; three guns, worth each $15, and divers other goods and chattels of said testator had come into the hands of the said Gustavus Martel to be administered; which said goods and chattels above enumerated the said defendant Gustavus afterwards, to wit, on the ____ day of _______, in the county of Fayette aforesaid, sold, eloined, wasted, converted and disposed of to his own use, by means whereof great damage has been done to said estate, and an action has accrued on said administration bond. Petitioner further charges that divers other goods and chattels, belonging to said estate, besides those enumerated above, came into the hands of the said Gustavus as administrator, which were returned and valued in his inventory far below their real value, to wit; three head of horses returned in the inventory and valued at $100, when they were worth at least $250; also a remnant of household furniture valued in said inventory at $10, but which was worth $30.

Petitioner further charges that the list of claims attached to said inventory shows that the said defendant, Gustavus, received $217.02 in cash, a claim for the sale of cattle for $225, and for notes handed over to him by the former administrator pro tem. to the amount of $146.35, which, together with the true value of the said property above mentioned, $280, makes the aggregate sum of $868.37, property in the hands of the administrator. Yet petitioner charges and alleges that, while the said bond was in full force and effect, the said Gustavus violated the conditions of the same by wasting said property and claims and cash on hand, and used and converted the same to his own use, and that he even realized out of it the sum of $900, which he has never accounted for to the county court aforesaid, nor any part thereof.

Petitioner further charges that the said Gustavus violated his duties, as administrator as aforesaid, by neglecting to return among the list of claims due said estate a note executed to Fred Martel by John Paine for the sum of $100, with interest from the month of June, 1851, and which said note petitioner alleges and charges came into the hands of said Gustavus while the said bond was in full force and effect; and about the same time, to wit: in the month of September, or thereabouts, the said Gustavus was informed and notified of the existence of the said indebtedness of John Paine to the said testator, and that the said Gustavus has wholly neglected to account for the said claim or any part thereof, but has wasted and converted the same to his own use.

Petitioner further charges and alleges that said Gustavus, as administrator as aforesaid, received one or two promissory notes executed by one Swinney for the purchase of negro man from said testator for the sum of $500, with interest from the ____ day of ____, 1857, and which was wasted and converted by said Gustavus to his own use during the time that the said bond was in full force and effect, and by reason of said wasting the said defendants are liable to your petitioner for the sum of $600. Wherefore, as by reason of the maladministration and devastavits committed by the said Gustavus, administrator as aforesaid, the said estate of the said Frederick Martel, deceased, has sustained great damage, to wit: the sum of $2,250, and for which the said defendants are jointly and severally responsible on the said administration bond. Petitioner prays that said defendants may be cited to appear at the next term of your honor's court to answer this petition; and upon the hearing of the same, petitioner prays judgment against said defendants for the said sum of twenty-two hundred and fifty dollars ($2,250) and damages and all costs of suit, and for all such other relief as equity and justice demand, and so he will ever pray.

There were several amendments to the petition, but they did not vary the material allegations upon which the recovery was sought.

Demurrer to the petition was sustained, and leave to the plaintiff to plead over refused.

W. G. Webb and J. T. Harcourt, for appellant. I. We do not consider it necessary to enter into an argument to show that the...