Green v. Rugely

• Decision Date: 01 January 1859
• Citation: 23 Tex. 539
• Parties: MARY A. GREEN ET AL. v. ALPHONZO RUGELY ET AL.
• Court: Texas Supreme Court

23 Tex. 539

MARY A. GREEN ET AL.

v.ALPHONZO RUGELY ET AL.

Supreme Court of Texas.

1859.

An heir can only be held liable for the debt of his ancestor, to the extent of the value of the property he has received.

Suit cannot be maintained against a party, in this state, as executor in his own wrong. 14 Tex. 607.

Where suit is brought against a widow, charging that she has taken into her possession, the property mortgaged to secure the debt sued for, and it is found by the verdict, that the property is of less value than the debt; a judgment against her for the debt, to be discharged, however, upon the delivery of the property, within a time fixed by the court, is erroneous.

As a general rule, there must be an executor or administrator representing an estate, to enable a creditor to bring a suit to subject the property of a deceased debtor to the payment of his debt. 14 Tex. 607;20 Tex. 129, 402;ante, 157; 20 Tex. 746.

The necessity for such executor or administrator, must be presumed in every case, unless facts be shown, that make it an exception to the general rule.

The fact, that property, upon which the creditor has a lien, is in the possession of the widow, who has removed to this state, from that in which her husband died, since his death, and that there is no administration on the estate of the debtor, either here or elsewhere, does not present an exception to this general rule.

The laws of another state, when not shown, must be presumed to be similar to our own.

That a party died, or had property in a particular diocese, as a general rule, is the test of jurisdiction of the ecclesiastical courts in England, to grant administration; but it will be granted, when necessary, upon unadministered effects found there.

The theoretical difficulty of jurisdiction, in England, arises not from a consideration of the objects of an administration, but from an effort to limit it, by keeping in mind the ground upon which it was originally founded.

The difficulty in the several American states, in granting administration upon property of one dying abroad and brought within their jurisdiction, arises from the limited scope of authority given by their statutes.

The terms of our statute are sufficiently broad to admit an administration to be granted in respect to any unadministered property, whether it was here at the time of the death of the party, or was brought here afterwards.

In order to give the court powers commensurate with the general objects of the system, the grant was made thus general, in the act of 1848, “to regulate proceedings in the county court;” and the provisions of the act of 1836, which might be construed into a limitation on the power, was not inserted in it.

The change in the different clauses of the first section of the act of 1848, seems intended to convey the same idea. And a liberal construction of the last clause of it, would confer jurisdiction to administer, upon the county where the property should be found; but it is unnecessary to decide as to this, since it may well be said, that it was not intended, by this section, either to confer or limit the powers, but merely to prevent a conflict as to jurisdiction.

The power to administer, should not depend upon the mere contingencies upon which a preference between counties is regulated.

Nor do ancillary administrations depend, for their authority, entirely upon express statutory regulations.

It is not necessary, in all cases, to the grant of an ancillary administration, that there should be an administration in the foreign state.

The rights of parties (as to personal property) are controlled by the law of the country where the decedent resided at the time of his death.

Effect will be given to these laws, by the court, in the administration granted here; whether there be an administration in the foreign state, or not.

ERROR from Anderson. Tried below before the Hon. Charles A. Frazer.

This was a suit by Rugely, Blair & Co., the defendants in error, against Mary A. Green, the widow, and Samuel H., Ella V., George W., and Mary L. Green, the minor children of Robert W. Green, deceased.

It was alleged by the plaintiffs, in their petition, that Robert W. Green, in the county of Anderson, where he then resided, executed to them, on the 14th of April, 1854, his note for $4,613.14, payable on the 1st day of April, 1855; and, to secure the payment thereof when due, the said Green, on the same day, executed to F. L. Barzeza, a deed of trust, upon the negroes therein described, which was duly recorded in the said county of Anderson. It was further alleged, that Green had, without their knowledge or consent, or that of Barzeza, removed the said negroes, with himself and family, to the state of Louisiana, and domiciliated himself in the parish of Morehouse, in the said state, where he subsequently, on the -- day of ____, 1855, died intestate. That afterwards, the defendant, Mary A. Green, took the said negroes into her possession, and brought them back to Anderson county, where she then had them in possession, and was holding them as her own property; that there had been no administration upon the estate of the said Robert W. Green, deceased, in Louisiana, or elsewhere; and that the said minors were without guardians. The petitioners prayed that the negroes might be sold to pay their said debt; that the said Mary A. Green should pay the value of the services of the negroes since they had been in her possession, in payment of their debt; and for general relief.

The court appointed a guardian ad litem for the said minors, who, together with the defendant, Mary A. Green, excepted to the petition, among other causes: 1st. That said Barzeza was not made a party. 2d. Suit should have been brought against the legal representative, and not against the heirs of the said Robert W. Green. 3d. The claim upon which suit was brought, should have been presented to the legal representative of the said Green for allowance. 4th. Application for the sale of the property, should have been made to the probate court. They also filed answers to the merits.

The court sustained the exception, that Barzeza should have been made a party, and overruled the others. Barzeza then appeared and made himself a party plaintiff; and they abandoned their claim for the services of the negroes while in the possession of the defendant, Mary A. Green.

There was, at the fall term, 1858, a trial upon the merits; the jury found, upon issues submitted to them, that there was due the plaintiffs, on the said note, $5,283.76; and that the negroes in the possession of the defendant, Mary A. Green, were worth $3,600. Whereupon, the court gave judgment against her for the said sum of $5,283.76, and costs of suit; but that the same should be discharged by the delivery to the sheriff of the negroes in controversy, on or before the 1st of January, 1859.

E. H. Horrell and James M. Perry, for the plaintiffs in error.

John E. Cravens, for the defendants in error.

ROBERTS, J.

The judgment, as it was rendered, is erroneous, because Mrs. Green was not primarily bound for the debt. If she could be held liable for the debt, as heir or distributee, it could only be to the extent of the value of the property she had received, and the negroes in her possession were shown to be of much less value than the debt, for which a judgment was rendered against her. She could not be held liable, in this state, as an executrix in her own wrong. Ansly v. Baker, 14 Tex. 607. The judgment must, therefore, be reversed. But the important inquiry, presented by the exceptions to the petition is, can the plaintiffs below maintain this suit at all, upon the facts alleged by them?

Generally, there must be an executor or administrator representing an estate, to enable a creditor of a deceased debtor, to bring suit, and subject the property of the estate to the payment of the debt. Ansley v. Baker, 14 Tex. 607. Upon this subject, the chancellor, Lord COTTENHAM, said, “That an estate cannot be administered in the absence of a personal representative, and that such personal representative must obtain his right to represent the estate from the ecclesiastical court in this country, has, I believe, never been doubted.” Tyler v. Bell, 14 Eng. Ch. 109. Our statute, casting the descent of the estate, both real and personal, directly and immediately upon the heirs and distributees, subject to an administration, does not vary this, as an ordinary rule, otherwise than by creating exceptions, when the reason of the rule does not exist. A right of action is given to creditors against heirs and distributees, to the extent of the property which may come to their hands, and be held by them, in the absence of an administration. Hart. Dig. art. 1221. But the law recognizes certain rights allowed to the widow and children of a decedent, to be of higher grade than the claims of creditors, and also gives a preference to some debts over others; and where there is a deficiency of assets to pay all, it makes provision for a ratable division among the creditors generally; and especial care is taken to prevent sacrifices, in sales of property, to pay debts. Hart. Dig. arts. 1153, 1154, 1176, 1177, 1181, 1187, 1189; McMiller v. Butler, 20 Tex. 402;Cunningham v. Taylor, Id. 129.

These, as well as other general objects of the law, pertaining to the estates of deceased persons, to be practically attained, require the adherence to it, as the ordinary rule, that creditors must pursue their remedies through the jurisdiction of the county court. See same authorities, 14 Tex. 607;20 Id. 129, 402. The necessity to pursue this remedy, must be presumed to exist in every case, until facts are shown which make it an exception. The statute makes certain exceptions, by rendering heirs, distributees, persons in possession of the property, and those giving certain bonds, liable to be sued by creditors; as when, after administration, the estate is ordered to be...