Henderson v. Lindley

• Decision Date: 22 November 1889
• Citation: 12 S.W. 979
• Court: Texas Supreme Court
• Parties: HENDERSON <I>v.</I> LINDLEY.

12 S.W. 979

HENDERSON

v. LINDLEY.

Supreme Court of Texas.

November 22, 1889.

Appeal from district court, Hopkins county; E. W. TERHUNE, Judge.

Trespass to try title by W. F. Henderson against Eli F Lindley. Plaintiff appeals from a judgment for defendant.

Henderson & Blocker and Croft & Croft, for appellant. Perkins, Gilbert & Perkins, for appellee.

GAINES, J.

This was an action of trespass to try title, brought by appellant against appellee. The facts which gave rise to the litigation are as follows: The land in controversy was the property of J. M. Lindley at the time of his death, which occurred in 1873. He left as his sole heirs his wife, Mrs. Starkie Lindley, and a minorson. It appears that an administrator was appointed and qualified; that the estate was administered in part; and that the administration became vacant. At all events, it is clearly shown by the record in this case that some time in 1877 one Martin was appointed administrator de bonis non of the estate. During this administration, in September, 1877, Mrs. Lindley, in her own behalf, and as guardian of her minor son, made application to the county court for a partition of the real estate belonging to the intestate at the time of his death, alleging that all the debts against the estate had been paid except a certain claim in favor of one Solomon, which had been rejected, and upon which suit had been brought, and that enough money remained in the hands of the executor to pay that debt should it be established as a just claim against the estate. The prayer of the petition was granted, and the commissioners appointed made a partition of all the real estate which was the separate property of the deceased, allotting to Mrs. Lindley a life-estate in certain parcels, deemed to be a third in value of the estate, and to her minor son the remainder in such parcels, and all of the other lands divided in fee-simple. The parcels were specifically described, and embraced the tract of land in controversy in this suit. The report of the commissioners was approved, and the partition confirmed, by the county court, at the January term, 1878. The son subsequently died, being of very tender years, and Mrs. Lindley married one Spencer. In May, 1888, joined by her husband, she conveyed the land in controversy to appellee. In 1887 J. M. Blanding became administrator de bonis non of the estate. The Solomon claim against the estate having been established, and the fund set apart for its payment having been entirely lost by the default of the former administrator, Martin, an order was made directing a sale of the lands belonging to the estate for the payment of debts. Under this order the tract in controversy was sold by the administrator, and purchased by the appellant.

The main question in the case is as to the effect of the order of the court directing a partition of the lands of the estate, and that confirming the partition made by the commissioners in pursuance of the former order. Section 94 of the act of August 9, 1876, provides that "at any time after the first term of the court, after the expiration of 12 months from the original grant of letters testamentary, or of administration, the heirs, devisees, or legatees of the estate, or any of them, may by their complaint in writing filed in the county court, cause the executor or administrator, and the heirs, devisees, or legatees, to be cited to appear at a regular term of the court and show cause why a partition and distribution should not be made among the heirs, devisees, or legatees of the residue of the estate, if any there be, after retaining in the hands of the executor or administrator a sufficient portion thereof to pay all debts of every kind against the estate that have been allowed and approved or established by suit, or that have been rejected by the executor or administrator, or not approved by the county judge, and may yet be established. If it shall appear to the judge after the service of such citation that there is any residue of the estate, he shall order it to be so partitioned and distributed." Laws 15th Leg. 117. The evident object of this provision was to enable the heirs to take possession of so much of the estate as was not necessary for the purpose of paying the debts of the decedent. A preceding section had provided that the payment of all claims not presented to the executor or administrator within 12 months from the grant of letters should be postponed until claims previously presented had been...