Marks v. Hill

• Decision Date: 01 January 1876
• Parties: ISAAC N. MARKS ET AL. v. D. HILL, ADMINISTRATOR, &c.
• Court: Texas Supreme Court

46 Tex. 345

ISAAC N. MARKS ET AL.

v.D. HILL, ADMINISTRATOR, &c.

Supreme Court of Texas.

1876.

APPEAL from Panola. Tried below before the Hon. George Lane.

The facts are carefully given in the opinion.

J. G. Hazlewood for appellant, cited Bartlett v. Cocke, 15 Tex., 478;Poor v. Boyce, 12 Tex., 449;Lynch v. Baxter, 4 Tex., 445;Finch v. Edmonson, 9 Tex., 504;Sydnor v. Roberts, 13 Tex., 598;Baker v. Coe, 20 Tex., 436;Lee v. Kingsbury, 13 Tex., 68;Tadlock v. Eccles, 20 Tex., 782;Giddings v. Steele, 28 Tex., 733; Paschal's Dig., art. 1260, and notes 462, 488; Sayles's Probate Laws, sec. 77, and note; Green v. Crow, 17 Tex., 188;11 Tex., 249;Wilkinson v. Wilkinson, 20 Tex., 242;Babb v. Carroll, 21 Tex., 766;Merriweather v. Kennard, 41 Tex., 280;Webb v. Webb, 15 Tex., 276;Johnson v. Newman, 43 Tex., 636;Randon v. Barton, 4 Tex., 289.

A. M. Carter, for appellees.--The children of Daniel B. Lewis took by purchase and not by descent from Daniel B. Lewis. The conditional certificate issued under art. 4167, Paschal's Dig. The patent issued under art. 2186 Hartley's Digest.

The children of Daniel B. Lewis were his only heirs. (Arts. 576 and 577, Hartley's Digest.) At Daniel B. Lewis's death, there was nothing in esse, of which an administrator could take into account, or which could descend to his heirs. (Walters v. Jewett, 28 Tex., 192.) “The persons who have an estate of freehold subject to condition are seized, and may convey or devise the same, or transmit the inheritance to their heirs, though the estate will continue defeasible until the condition be performed, or destroyed, or released, or barred by the statute of limitations, or by estoppel.” (4 Kent, 125.)

Daniel B. Lewis could not convey, (art. 4167, Paschal's Dig.,) nor devise, nor transmit the inheritance to his heirs. In Ohio, in case of a grant to revolutionary officers or their legal representatives, where they are dead, the heirs will take as purchasers. (Thompson v. Gotham, 9 Ohio, 170.)

We think this case will reflect considerable light on the point of purchase. (See also 1 Bl'k Comm., Book 2, 241. A purchase is the method of acquiring an estate otherwise than by descent. (Ib.; also Williamson on Real Property, 96.)

We are strongly of opinion that the administration upon Daniel B. Lewis's estate was null and void. There were no debts due by the estate, and none owing to the estate, (see Mathews's testimony, Withers v. Patterson, 27 Tex., 491,) and nothing to administer upon. (Walters v. Jewett, 28 Tex., 128.)

GOULD, ASSOCIATE JUSTICE.

The appellees, who were the plaintiffs below, claimed the land in controversy by virtue of a conveyance from the children and sole heirs of Daniel B. Lewis. The appellants claimed the same land under the surviving widow of Daniel B. Lewis, and under an order of the County Court, made in the administration of the estate of said Lewis, setting the headright certificate aside to her.

The facts necessary to the proper understanding of the case are as follows: In 1839 Daniel B. Lewis, with his wife and two children, immigrated to Texas. In the same year, his wife died, and he married again. On January 10, 1840, a conditional certificate for 640 acres was issued to him, under the statute entitling him thereto. (Paschal's Dig., art. 4167.) In the spring of same year, he died, and letters of administration were granted in May, 1840, to James L. Mathews, brother of his second wife, Mary Ann. So far as the record shows, his estate consisted of personal property to the amount of $63.75, and the conditional certificate. In August, 1842, this conditional certificate was located and survey made of 486 acres of land in what was then Harrison county, through whose agency does not appear. This survey, however, was in conflict with another, and was afterwards abandoned. In November, 1849, the unconditional 640 certificate was issued to Daniel B. Lewis, or the heirs of Daniel B. Lewis. The precise form of the certificate does not appear, nor by whose agency it was procured. In February, 1851, Mathews, as administrator, filed his petition, alleging that there remained in his hands the headright certificate of deceased for 640 acres of land, 480 acres of which had been located in Panola county, (cut off from Harrison county in 1846,) Texas. The petition states that he had filed his accounts, prayed for notice to the heirs, naming them, and that the estate be distributed. At the March Term of the County Court this petition was amended by leave of court, so as to show that the property on hand was simply a certificate for 640 acres of land. At the same term, the court made the following order: “Estate of Daniel B. Lewis. It appearing to the court that there never had been any order heretofore setting apart the property for the support and maintenance of the widow and heirs of said estate, and the said widow being willing to take the amount of property contained in the inventory at its appraisement, it is therefore ordered by the court that the same be set apart, to wit, one bed and furniture, valued at $30; one saddle, $5; one gun, $20; pot ware, $2.50; crockery ware, $3.25; one trunk, $3; Daniel B. Lewis's headright certificate, $320; and that the administrator be and is hereby required to hand over the same to said widow, upon paying costs, &c., paid out by him in management of said estate.” The order proceeds to recite the examination of the administrator's accounts, and that the entire estate had been set apart to the widow, and finally discharges the administrator. At the time this order was made, the second and surviving wife of Daniel B. Lewis was living with her third husband, R. G. Stollcop, she having first, after Lewis's death, married one Miller.

In September, 1851, the conditional certificate was surveyed on the land in controversy. In December of the same year, the widow, joined by her then husband, conveyed the certificates, conditional and unconditional, to S. Harris, and after several intermediate conveyances of the certificate and land surveyed thereby, these were conveyed in 1856 to the appellants.

In 1854, the sons of D. B. Lewis conveyed the certificate and the surveys made by virtue thereof to W. K. Elliott and J. E. Anderson, the latter of whom afterwards conveyed to T. S. Anderson, who, with the administrator of Elliott's estate, were the plaintiffs. In 1874, the land in controversy, corresponding in the field-notes with the survey of 1851, was patented to the heirs of D. B. Lewis.

It is contended on the part of appellees, that the unconditional certificate constituted no part of the estate of D. B. Lewis, but that it was the property of his heirs by purchase and not by descent. Such, however, is not our opinion. It is believed that the...