Lockhart v. White

• Decision Date: 01 January 1856
• Citation: Lockhart v. White, 18 Tex. 102 (Tex. 1856)
• Parties: ROBERT LOCKHART AND ANOTHER v. JANE WHITE AND OTHERS.
• Court: Texas Supreme Court

18 Tex. 102

ROBERT LOCKHART AND ANOTHER

v.JANE WHITE AND OTHERS.

Supreme Court of Texas.

1856.

The order of the probate court is not required to the validity of a payment by an administrator, of a claim against an estate, which has been allowed and approved; if the payment be proper in itself, and such as the court would on application decree, it cannot be impeached for the want of a previous order to that effect.

Where an administrator makes payment to one or more creditors, of a portion or the whole of their claims, without order of the court, and not on other claims of the same class or degree, he does not thereby render himself personally liable for the debts unpaid; but, in the settlement of his account, he will be entitled to credit for such amounts only as shall be found to be due and payable to the creditors so paid by him, not to exceed the amount actually paid.

Where a deceased person leaves a child, his creditors can have no interest in resisting the allowance to his widow and child, on the ground that the alleged widow was not the lawful wife of the deceased, because, it seems, the child would be entitled to the same allowance.

An incontrovertible answer to the position and argument of the appellants (that the reputed widow had not been the lawful wife of the deceased, and was therefore not entitled to the widow's allowance, to the extent of which the plaintiffs were seeking to charge her as administratrix, for a devastavit) is this: that Allsbrooks left one child by his wife at the time of his death, and whether the widow be or be not entitled to the allowance under arts. 1153 and 1154, the child certainly is, and could claim the whole for itself, to the exclusion of the plaintiffs and all others, except those claiming for funeral expenses and those of the last sickness. 14 Tex. 463;17 Tex. 180;24 Tex. 270.

Though the law presumes a continuance of life, yet where this presumption necessarily involves a presumption of crime, and comes in conflict with the presumption of innocence, the former, which is the weaker, yields to the latter, and the party affirming that an individual is not dead will be bound to prove it.

The right to impeach the decree of the county court ordering the allowance (to the widow and children) and the payment under that decree, by action on the bond, charging waste against the administratrix and her sureties, admits of serious question. (In this case the widow was administratrix.) 3 Tex. 449.

In this case the decree, if not conclusive in itself, is made so by the acts of the plaintiffs. Their attorney in fact resided in the county where the succession was opened; was notified of the application of the administratrix to resign, and was present in court at the settlement of her final account, which passed without objection on his part; at least none appears from the record. Such acquiescence, continued as it was for nearly two years, is conclusive against the right of the plaintiffs to disturb collaterally the decree, or the allowance under it to the widow and children.

Where an administrator has converted property of the estate before obtaining letters of administration, his only liability is to account for it as administrator, or to pay the value thereof in a suit on his bond; but not to pay all the debts of the estate.

See this case for evidence which did not entitle a creditor to judgment in a suit on the bond of an administratrix.

Appeal from Limestone. Tried below before the Hon. Henry J. Jewett.

Suit, September 8, 1851, by appellants against the appellees, on the bond of Jane Allsbrooks (now Jane White), as administratrix of Wm. H. Allsbrooks, deceased. The petition alleged maladministration and appropriation of the assets of the estate by the administratrix, in general terms; an amendment specified one horse of the value of $150, and a house and lot in the town of Springfield, of the value of $400. The claim of the plaintiff had been allowed by the administratrix, and was for the sum of $882.60. The administration bond was dated March 27th, 1848. The plaintiffs alleged that the said Jane was not the lawful widow of said Allsbrooks, inasmuch as at the time of her pretended marriage with said Allsbrooks, a former husband of hers, one Charles Waggoner, from whom she had not been divorced, was still then living. The answer denied all and singular, etc.

The plaintiff introduced in evidence his claim; the bond; admission that said Jane was appointed administratrix as alleged, at March term, 1848, of probate court of Limestone county; the inventory of the estate, filed September 25th, 1848; exhibit at first term after twelve months, filed May 1, 1849; petition for leave to resign and final account filed October 31, 1849; deposition of John Welch proving marriage of said Jane to Charles Waggoner, by reputation, that they lived together as man and wife a few months, then separated, and Waggoner left the country; witness did not recollect the time of the marriage-- was not present; did not know whether Waggoner was living or dead, nor when he last heard of him; deposition of John H. Welch, proving that said Jane married Allsbrooks in 1846; did not know whether Waggoner was living or dead, nor when he last heard of him; then called James M. Love, who testified that by common report said Jane was married to said Waggoner in the latter part of 1840 or first of 1841; did not live long with her; separated from her; witness heard of him there afterwards in eastern Texas, and about a year after that in western Texas; marriage license of said Jane and Allsbrooks returned, executed March 5th 1846. Here plaintiffs closed.

The inventory showed store goods appraised at $713.57; real estate to wit: house and lot, late residence of deceased, $100; half-lot, with store-house and stable, $125; horse, $65; yoke oxen, $16; cash on hand $103.50; notes and accounts, $957.68; household and kitchen furniture, $50; total, $2,000,56. Here followed, as part of the inventory, a statement of what purported to be “amount of sales of the above property made in private,” cash, $82; accounts, $98.12--$180.12.

The exhibit at the end of a year showed the following claims allowed within the year: R. Lockhart & Co., account, $882.60; Lott L. Godfrey, note, $220; James M. Davis, account, $53.81; Cook and Tate, account, $125; A. J. Ashton, note, $70; allowed after a year, J. W. Simmons, account, $51.50; total presented within the year, $1,451.41. In the same exhibit the administratrix stated amount of proceeds of sales, $643.46; amount taken by herself in goods, $113.34; one horse, appraised at $65; yoke oxen, $16; cash, $21.50; amount received, including cash on hand at time of inventory, $254.03; paid A. J. Ashton, on note, taken in full payment, $35; L. L. Godfrey, on note, $95.54.

The petition for leave to resign, and final account, showed same statement of claims against the estate; that the property of the estate had been disposed of as follows: sales, $664.97; to widow and child of deceased, part in lieu of statutory allowance, homestead lot in Springfield, $100; half-lot in Springfield, store-house and stable, $125; yoke oxen and horse, $81; household and kitchen furniture, $50; total allowance, $356. Total cash on hand at date of inventory, and since received, $287.97. Settled with J. B. Hardin (first time this claim appeared--REPS.), $88.71; paid funeral expenses, $25; T. A. Bailey, for services, $8.45; paid for advertisement, $3.50; court fees, $7.10; L. L. Godfrey, $95.54; A. J. Ashton, $35; total, $264.30; court fees now due, $27.75. The whole estate now consists of notes and accounts. All which is respectfully submitted, etc.

The defendants introduced the final account of the administratrix as re-stated and confirmed by the chief justice, as follows: Money on hand at time of administration, $103.50; amount of sales, $643.46; goods, $9.84; notes and accounts on hand at time of administration, $957.68; homestead, $100; half-lot, store-house, etc., $1.25; horse, $65; yoke oxen, $16; total, $2,020.48.

Credits as follows: amount paid out, same items as in the account, with the addition of, to J. M. Davis, $53.81; total paid out, $318.11; add allowance for year's support, $150; statutory allowance, $256.00; court expenses now paid, $19.45; commissions on $335.90, $33.36; total, $776.03; and further credit for the following notes and accounts delivered up to the court, to wit: here followed a list of same, amounting in the aggregate to $1,235.12; then followed an item of “incidental expenses,” $18.43; total credits, $2,020.48. “And it appearing to the court that said administratrix has accounted for all said estate, according to law, it is ordered by the court, that said papers and effects be delivered over into the hands of R. R. Smith, clerk of this court, and that said administratrix, upon complying with the foregoing order, be permitted to resign her trust, and be discharged from further responsibility.”

The defendants then introduced a statement of the notes and accounts, showing the dates of their accrual or maturity, it did not appear which; but it did appear, that even if the dates were the dates of maturity, only a very trifling amount could have been barred by limitation at the date of the resignation of the administratrix.

The defendants then introduced the order discharging the administratrix, marked I. (The copy of this order was not in the transcript.--REPS.) They then introduced the order of allowance, to which plaintiffs objected, etc. Its date did not appear. It was for the benefit of the widow and only child of the deceased, and allowed $150 for year's support of widow and child; the homestead, $100; household and kitchen furniture, $50; in lieu of other articles, the half lot,...