George v. Watson

• Decision Date: 01 January 1857
• Citation: George v. Watson, 19 Tex. 354 (Tex. 1857)
• Parties: ALMIRA GEORGE AND OTHERS v. COLEMAN WATSON.
• Court: Texas Supreme Court

19 Tex. 354

ALMIRA GEORGE AND OTHERS

v.COLEMAN WATSON.

Supreme Court of Texas.

1857.

Under the act of 1840(Hart. Dig. art. 1030), a mere temporary residence in any county did not give the court of that county exclusive jurisdiction to grant administration on the estate of a decedent; it must have been a “fixed domicile or residence.”

An allegation that a deceased person, on whose estate administration was opened, under the act of 1840, in Red River county, resided at the time of his death in Lamar county, and that his last place of residence was in Lamar county, is not a sufficient allegation of fact to show that the court of Red River county did not have jurisdiction; it should have been alleged that the residence in Lamar county was “fixed,” that being the language of the statute.

Where the petition for letters of administration, under the act of 1840, in Red River county, described the deceased as “late of Lamar county,” and was filed as part of the petition, in which it was alleged that the last place of residence of the deceased was in Lamar county, it was held not to be sufficient to show that the deceased had a “fixed” residence in Lamar at the time of his death.

Under the act of 1840, it was sufficient allegation to give the probate court jurisdiction, prima facie at least, to allege that the deceased had property in that county.

In a suit by the heirs of a deceased person to set aside a sale by the administrator on the ground of fraud, brought against a person other than the purchaser at the administrator's sale, it was not sufficient to charge fraud on the part of the administrator and the purchaser at the sale by him, but it must at least be alleged that the defendant(who was assumed to be a subsequent purchaser under said sale) had notice of the fraud.[15 Tex. 365;24 Tex. 526.]

The act of 1848 to regulate proceedings in the county court in relation to the estates of deceased persons, does not require or seem to contemplate the service of a citation or notice upon the heirs, of an application by the administrator for an order to sell real estate to pay debts, and the want of such notice did not invalidate the sale on general principles.

The purchaser at an administrator's sale is not bound, in matters that do not go to the jurisdiction, to look beyond the decree of the court.[4 Tex. 431;15 Tex. 457, 604;18 Tex. 179;28 Tex. 732.]

Appeal from Grayson.Tried below before the Hon. William S. Todd.

Petition of the widow and heirs of Fleming George, some of whom were minors, filed March 16, 1855, alleging as follows:

That Fleming George, who then resided in the county of Lamar and state of Texas, departed this life sometime in the year A. D. _____; that said Fleming was the husband of Almira George, one of petitioners, and the father of the said Eliza Wilson, William, James, Martha, Charles and Robert George, who are all heirs at law of the said Fleming George, deceased, and plaintiffs in this suit.Said plaintiffs state that said Fleming George, at the time of his death, was the owner by purchase of one undivided half of one league and labor of land, the same being the half of the headright of Robert Nall, and situated in Grayson county, Texas, on the waters of the east fork of the Trinity river; they state that said league survey is bounded as follows: [Here follows a description of the land.]

Plaintiffs state that by a decree of the district court of Red River county said league and labor of land has been divided amongst the owners and pretended owners of the same, and that the eastern half, twenty-three hundred and two acres and a half, has been allotted off as the land sold by the said Robert Nall to Fleming George; and they state that they are satisfied with the division so made, so far as the quality of the land is concerned.All of which will appear by reference to a certified copy of the records of the district court of Red River county, of said partition of land, which is here referred to; plaintiffs state and show, that on the 10th day of September, A.D. 1851, Coleman Watson, who is a resident of Grayson county and state of Texas, wrongfully and unlawfully entered upon eleven hundred and fifty-one and a half acres of said eastern part of said league and labor of land, so as aforesaid set apart as the half belonging to said George's heirs, and did then and there, and continually from that day up to the commencement of this suit, hold forcible possession of the same, and did then and there cut down and haul away three thousand oak trees, and make the same into rails, and one thousand elm trees, one thousand pecan trees, fifty board trees (over cup oak); all of the value of one thousand dollars.They state that they are informed that said defendant pretends to claim said land through some title derived from Bennett H. Martin, deceased, derived through the sale of said land by one James Hefferfinger, pretending at the time to be the administrator of said Fleming George, deceased.They further state that the sale of said Hefferfinger was fraudulently procured to be made; and said plaintiffs state and aver that said Hefferfinger never was the legal administrator of said Fleming George, deceased, and that all his acts as such are void as against these plaintiffs.They further state and charge, that said sale of said land, by the said Hefferfinger, was made and procured illegally and fraudulently, and was made in the county of Red River, at a distance of more than one hundred miles from the said land, and without any authority of law to do so.And petitioners state and show, that said land so fraudulently and illegally procured to be sold by Hefferfinger as such pretended administrator was sold for the sum of ten cents per acre, amounting to the sum of $230.25, for 2,302 1/2 acres of choice land, which sum or any part thereof has never been accounted for by the said James Hefferfinger.Said tract of land thus fraudulently sold was purchased by Bennett H. Martin, who had been the principal adviser and attorney at law for said Hefferfinger as such pretended administrator, when in fact and in truth said land was well worth one dollar per acre; and that said price is inadequate; and that said sale ought to be set aside as null and void, and fraudulent and illegal; and all of which matters and things will fully appear by reference to the proceedings of said probate or county court of Red River county, and the records of the acts and doings of said Hefferfinger in said court.Plaintiffs state that said 2,302 1/2 acres of land, at the time of the purchase of the same by the said Fleming George, was community property; and that Almira George, the widow of said Fleming George, deceased, is entitled to an undivided interest in the same with the children and heirs of said George.Plaintiffs aver and charge, that they never had any notice of an application for an order to sell the land at the time the order was procured by the said Hefferfinger, as such pretended administrator, to sell said land as aforesaid; and that said order was procured and said sale was made without any notice ever having been given to these petitioners whatever.Plaintiffs say they are damaged to the amount of $5,000.Hence they sue and pray that all the right and interest of the said defendant, Coleman Watson, may be decreed to be fraudulent and illegal, and that all the right, title and interest of the said Fleming George, deceased, be forever vested in plaintiffs, as such heirs and owners of said tract of eleven hundred and fifty-one and one-half acres of land, so as aforesaid claimed by the said defendant, and that they may have such damages as are right in the premises; that they may have judgment for the same; they pray for all the relief that may seem equitable and just in the premises, and that process may be awarded, and that defendant be cited to appear and answer, and as in duty bound, will ever pray, etc.

Amendment filed May 1, 1854, alleging as follows:

That the said Fleming George, whose last place of residence was in Lamar county, in the state of Texas aforesaid, departed this life about the _____ day of _______, in the year 1842, and that on the _____ day of January, 1843, the said James Hefferfinger filed his petition in the probate court of Red River county, praying that letters of administration might be granted to him on the estate of the said Fleming George; and at the February term of said probate court, in the year 1843, was by the order of the said probate court appointed administrator of said estate, as will more fully appear by reference to a transcript of the proceedings of said probate court, which is here marked exhibit A, and prayed to be taken as a part hereof.Your petitioners further state that at the April term of said probate court, in the year 1843, the said James Hefferfinger obtained an order of said court to sell all the perishable property of the estate of the said Fleming George, and in pursuance thereof he sold a part of said perishable property, amounting to the sum of $1,111.12 1/2; and afterwards, to wit, on the ____ day of December, 1843, filed his petition in said probate court, stating, among other things, that he had in his possession sundry assets belonging to the estate of Fleming George, to wit: “about one hundred pounds of wool, three hundred bushels of corn, and five thousand pounds of seed cotton;” and praying for an order of said probate court to sell said property, which order was granted according to the prayer of said petition.And your petitioners further show unto your honor, that on the 29th day of May, 1844, the said James Hefferfinger filed in the probate court of Red River county aforesaid, a list of debts coming to the estate of Fleming George, and also an account of claims that had up to that time been presented to him for allowance, by which it is shown that he then had in his hands claims due said estate amounting to the sum of $1,675.50,...