Hillebrant v. I. W. Burton's Heirs

• Decision Date: 01 January 1856
• Citation: 17 Tex. 138
• Parties: CHRISTIAN HILLEBRANT AND ANOTHER v. I. W. BURTON'S HEIRS.
• Court: Texas Supreme Court

17 Tex. 138

CHRISTIAN HILLEBRANT AND ANOTHER

v.I. W. BURTON'S HEIRS.

Supreme Court of Texas.

1856.

Where the heirs of a deceased person sue to set aside a claim which has been allowed and approved, on the ground that it was barred by the statute of limitations when allowed or approved, the burden of proof is on them. [5 Tex. 487;11 Tex. 116;14 Tex. 315;16 Tex. 138;ante, 7; 23 Tex. 254, 496;28 Tex. 732.]

Where a claim against a deceased person has been allowed and approved, every presumption is in its favor, and he who attempts to impeach it must assume the labor of distinctly and clearly showing its vices.

This rule acquires a great deal more stringency if a great length of time is permitted to elapse before such judgment is impeached.

Quære, whether this case decides that where an account is stated in the handwriting of the debtor, and is delivered to the creditor, who makes no objection thereto, it is not barred under four years.

Error from Houston. Tried below before the Hon. John H. Reagan.

The plaintiffs below were minors. The other facts are stated in the opinion.

Yoakum & Taylor, for plaintiffs in error, cited Mills v. Hodge, 5 Tex. 489;Lewis v. Houston, 11 Id. 648;2 Id. 381;Moore v. Hillebrant, 14 Id. 312.

S. A. Miller, also for plaintiffs in error, in addition to authorities already cited, cited Jones v. Underwood, 11 Tex. 116; Brown v. Sutton, 1 Dallas, 239; Merritt v. Cleeson, 12 Johns. 102;14 Id. 484;Bailey v. Ogden, 3 Johns. 399; Chit. on Cont. 69; Curry v. York, 3 Tex. 357;Duggan v. Cole, 2 Id. 396.

LIPSCOMB, J.

This suit was brought by the defendants in error to set aside a claim against the estate of I. W. Burton, deceased, that had been presented to the administrator, admitted by him and approved by the probate judge. The claim was on an open account, and was presented to the administrator duly proven, on the 3d day of February, 1844. The paper on which the account was set out, contained immediately preceding the statement of the account, an acknowledgment in the handwriting of the deceased and signed by him, that Hillebrant was jointly interested with the deceased in certain lands described therein. It bore date 29th of May, 1841. Below the signature of Burton is the account, in his handwriting, striking a balance in favor of Hillebrant, of twelve hundred and sixty-six dollars. In addition to this, there is the affidavit of Vansickle, that Burton, in February, 1841, acknowledged that he owed Hillebrant that amount. This suit was brought on the 18th July, 1854, to set aside the quasi judgment in favor of Hillebrant, on the ground that the claim was barred by the two years limitation, before its presentation to the administrator; and it seems to have been the only question, whether the claim was barred at that time. On the evidence above stated, for it does not appear that any other was offered, the judge charged the jury that “The paper in evidence before you purports to be, in part, a contract by which Mr. Burton agreed to make Hillebrant equally interested with him in the location he had made on the McKinney league of land, excepting the Grisby survey, when Hillebrant should make Burton equally interested with him in the Perolet half league of land. This is a complete contract, dated 29th of May, 1841, and has reference to no other instrument in connection with it, and is signed by Burton. Then follows, on the same piece of paper, what purports to be a statement of an account between Hillebrant and Burton, showing an indebtedness by Burton to Hillebrant of twelve hundred and sixty-six dollars, which is not signed by Burton or dated. There being nothing in this account which shows it to be a postscript to the...