James Cochran's Adm'rs v. Thompson

• Decision Date: 01 January 1857
• Citation: 18 Tex. 652
• Parties: JAMES COCHRAN'S ADM'RS v. H. D. THOMPSON, ADM'R.
• Court: Texas Supreme Court

18 Tex. 652

JAMES COCHRAN'S ADM'RS

v.H. D. THOMPSON, ADM'R.

Supreme Court of Texas.

1857.

Upon the first ground it may be remarked that an objection of this character (that the grant of letters of administration de bonis non to the plaintiff was void, fourteen years having elapsed since the death of the intestate before they were granted) should be taken by plea, or at least by special demurrer.

As a general rule, grants of administration after so great a lapse of time, should be regarded as nullities; but there may be special reasons which would even then support a grant, as, for instance, a money demand, or claim, of the estate, which had lately fallen due.

Under the law, as it now exists, it would seem that the heirs, though entitled to the estate, and though it has vested in them by operation of law, yet cannot sue for the recovery of debts; though perhaps this might be allowed under some circumstances, where much time has elapsed without administration. 8 Tex. 182; 25 Tex. S. 1; 28 Tex. 732.

Where the defendant's demurrer to the petition is overruled, but judgment goes for the defendant on his answer, from which the plaintiff appeals, the defendant, if he would have the ruling of the court on his demurrer to the petition revised at all, must take a cross appeal;¹ if he fails to do so, and the judgment is reversed and cause remanded, and judgment finally goes against him below on error, this court will not revise the ruling on the demurrer to the petition. (But this would seem only to apply to cases where the demurrer is special, or where the objection is such as is required to be taken by special demurrer.)

Property of an estate which is fraudently disposed of by the administrator, although such disposition be made by formal sale, under order of the court, remains, in consideration of equity, unadministered, and may be recovered by an administrator de bonis non.

Error from Montgomery. Tried below before the Hon. Peter W. Gray.

Petition filed March 8th, 1851, as follows: The petition of Henry D. Thompson, Adm'r de bonis non of James Smith deceased, respectfully showeth that in the year 1831, there was issued, by the Mexican government, to James Smith, a title for one fourth of a league of land, lying in Montgomery county, Texas, and fully described by metes and bounds in the exhibits hereto annexed; that, in 1837, the said Smith died intestate in Montgomery county, and at May term, 1838, of the probate court of that county, letters of administration were granted upon his estate to Louisa Peck and F. Johnson. At January term, 1840, Johnson was dismissed, and Louisa Peck, then Louisa Johnson, and Martin Johnson were appointed administrators de bonis non of said estate. Afterwards, to-wit: at February term, 1845, James Cochran petitioned for letters of administration, and at March term, 1845, the said court without any order at the time, or previous, removing Martin Johnson and wife Louisa, appointed said Cochran as administrator de bonis non of said estate, and at the same time, 1845, the said Cochran, without any shadow of a claim against the estate, procured an order to sell said quarter of a league of land on a twelve months' credit, and, in pursuance of said order, he proceeded to sell the same on the 5th of August, 1845, having previously entered into a contract with one Jacob Shannon, by the terms of which the land was to be sold for cash, and Shannon was to buy it in and re-convey to him the two-thirds of the land. In pursuance of which iniquitous proceedings, the land was sold for cash; Shannon was declared the purchaser, and a deed made to him for the land, for two hundred and thirty-five dollars. At the same time, as it is believed, Shannon made a deed to Cochran for two-thirds of the quarter of a league for the pretended consideration of three hundred dollars. The first named deed bears date the 5th of August, 1845; the second on the 6th of August, 1845, and copies of them duly certified are hereto annexed.

Petitioner further states that said Cochran, after making return of said sale, made no further showing, and some two years thereafter, he died, as petitioner is informed, intestate; and William Day and ____ Day, his wife, one or both of them, resident, as petitioner is informed, in Washington county, Texas, are his administrators. Petitioner further states that at the January term, 1851, he was appointed by the county court of Montgomery county, aforesaid, administrator de bonis non of said James Smith, deceased, and has his letters ready to show as this court may require.

Petitioner further states that, if said Cochran ever had any claim against said estate, it had been long before barred by the statute of limitations. He further states and charges that said Cochran and Shannon combined to defraud and did defraud said estate in said pretended sale, and is advised, and believes, and so charges, that the whole proceeding is illegal, iniquitous, fraudulent and null, and be so declared. Wherefore he prays, etc.

Defendants answered separately, by general demurrer, and other pleas not now important. At fall term, 1851, the demurrers to the petition were overruled, and there was a mistrial. At spring term, 1852, trial and verdict for defendants. Plaintiff appealed, and the case will be found reported in 9 Tex. 536. The judgment having been reversed, and the cause remanded, it came up again for trial at the spring term, 1855. The entry read as follows: This day came the parties by attorneys, and the defendants' demurrer coming up, was adjudged to have been heretofore overruled by this court; thereupon came a jury, etc. Verdict and judgment for plaintiff. Writ of error by Day and wife, administrators, etc. No statement of facts, nor bill of exceptions.

J. W. Henderson, for plaintiffs in error. We think this court has decided against the right of the defendant in error in the cases of Murphy v. Menard, 11 Tex. 673;Menard v....