McLane v. Belvin

• Decision Date: 01 January 1877
• Citation: 47 Tex. 493
• Parties: H. H. MCLANE v. R. H. BELVIN ET AL.
• Court: Texas Supreme Court

47 Tex. 493

H. H. MCLANE

v.R. H. BELVIN ET AL.

Supreme Court of Texas.

1877.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

On the 4th of June, 1857, Asa Mitchell executed a promissory note for $3,000, payable to William McLane, due on the 4th day of January, 1859, with twelve per cent. interest, payable annually, secured by deed of trust on certain lands in Bexar. Payments were made on the note from time to time until the 22d day of August, 1862, when the whole note was paid off in Confederate treasury notes, and the note surrendered up and a release of the deed of trust formally executed by I. A. Paschal, trustee and attorney of McLane. In November, 1865, Mitchell died testate, and appointed by his will his son, Hiram A. Mitchell, and his two sons-in-law, R. H. Belvin and W. J. Joyce, his executors, and provided, under the statute, that they should administer his estate without the intervention of probate courts, except to prove and record his will and file an inventory of his estate. In January, 1866, William McLane repudiated the Confederate-money transaction made in August, 1862, and demanded that the note should be paid over again. Two of the executors, Joyce and Belvin, consented to allow a claim against the estate of their testator for $3,672.51, with interest from 22d of January, 1866, at ten per cent. per annum. The other executor, Hiram A. Mitchell, refused to be a party to this arrangement, and expressly dissented from it, claiming that the debt was paid off by the acceptance of the $3,613 in Confederate money in 1862. In this shape the claim was presented to the Probate Court of Bexar county, and approved by A. Siemering, chief justice, on the 1st of March, 1866. On the 19th of February, 1869, plaintiff filed his original petition in the District Court of Bexar county, declaring on the claim for $3,672.51, reciting the allowance of the two executors, the approval of the probate judge, non-payment, and praying judgment. General denials were filed to save defaults, and on the 13th of October, 1873, the defendants filed their demurrer and amended answer setting up their defenses, and making A. J. and Wallace Mitchell, two of the heirs of Asa Mitchell, parties to the suit. The defendants, among other matters of law and fact, pleaded that it was not alleged, nor was it true in point of fact, that the claim of plaintiff was ever allowed by all three of the executors, but that the claim was really rejected by one of them; that two of the executors had no authority under the law and under the will to bind the estate of their testator to pay money without the consent of the other executor, nor had the chief justice nor the Probate Court any jurisdiction to allow or approve a claim against the estate of Asa Mitchell; also pleading a general denial, payment, want of consideration, usury, illegal consideration, & c. On the 27th of October, 1873, plaintiff, William McLane, having died, H. H. McLane became plaintiff, and filed an amended petition, for the first time alleging that Mitchell had made a note and a deed of trust, and alleging that Mitchell, by writing, had, in consideration of an extension of time, agreed to pay the note on the 4th of January, 1861, and again on another extension promised, in writing, to pay the note on the 4th of January, 1863, or at any time before that Mitchell might choose, on giving McLane three months' notice. By these allegations it was sought to take the case out of the statute of limitations. Plaintiff further alleged that Mitchell offered him the money for his note in Confederate currency in the month of June, 1862, and that afterwards he (plaintiff) was arrested and tried before a military commission, and was acquitted, and on the 22d day of August, 1862, he, acting under advice of counsel, accepted payment in Confederate money under duress, &c., and instructed his trustee to release the deed of trust and surrender up the note; but that after the war was over, and Mitchell dead, he had called upon his executors to pay the debt, and that two of them allowed a portion of his claim, &c., and prayed in the alternative for the $3,672.51 and interest from January, 1860, or for the entire amount of the note and interest, and the enforcement of the lien, &c.

On the 5th of January, 1874, defendants again replied, and denying all allegations, especially deny the new promise of Asa Mitchell, or any other promise than that in the promissory note and deed of trust, and any forbearance to execute the same by McLane at the request of Mitchell.

They also denied any duress when McLane received the money, and alleged that plaintiff received it willingly and eagerly, and that no lien exists on the land, and pleaded the statute of limitations; that more than four years had elapsed between the 4th of January, 1859, when the note fell due, and the 27th of October, 1873, when the amended petition of plaintiff was filed setting up the note of 4th of June, 1857. Upon these issues joined, the case came to trial on the 7th of January, 1874, and resulted in a verdict for defendants, from which, after motion of new trial overruled, plaintiff appealed.

S. G. Newton, for appellant.--The court instructed the jury upon only two points: that of duress and limitation.

It seems to me that the first prominent question to be discussed is, whether the court was right in excluding, as evidence of the debt, the statement of settlement as sworn to, accepted by two of the executors, and approved by the chief justice and the Probate Court while in session?

“The rights, powers, and duties of executors and administrators are to be governed by the principles of the common law, when not in conflict with the statute.” (Paschal's Dig., art. 1396.)

At common law, “if a man appoint several executors, they are esteemed in law but as one person representing the testator, and therefore the acts done by any one of them are deemed the acts of all, and are of like binding effect, when within the scope of their appointment. (4 Bac. Abr., title EXECUTORS AND ADMINISTRATORS, “D;” 1 Williams's Ex'rs, 777; Toll's Ex'rs, 407; 3 Red. on Wills, 222; 1 Wend., 583;16 Johns., 273;9 Cow., 34;14 Wend., 90;2 Litt., 315;4 Litt., 451;14 Pet., 166;11 Johns., 16.) And the principle and its application is fully recognized by this court in the case of Dean v. Duffield, 8 Tex., 235.

I here insert extracts from the will, as in evidence, from which it will be observed that there is nothing in its terms or form affecting the rights, powers, and duties of executors at common law or by our statute:

“Fifth. I nominate and appoint my two sons-in-law, R. H, Belvin and W. J. Joyce, and my son Hiram A. Mitchell, executors, with full power to carry out the provisions of this my last will and testament, and to make final settlement and distribution of my estate among the heirs, as herein directed; and for this purpose my said executors are authorized to make sale of such property of my estate, not herein specially bequeathed, as they may believe necessary to pay expenses and debts, or as, in their opinion, cannot be conveniently and advantageously divided in kind.

Sixth. It is my will and desire that my executors herein named shall not be required to give bond and security, nor do I wish any further action had on my estate in the County Court for the settlement of estates, than to admit to probate and record this my last will and testament, and file and record an inventory of my estate.”

I think these authorities fully controvert the position of defendants, as well as the assumption by the court, that there was a want of authority in the executors. There is no pretense of fraud or deception charged or chargeable to plaintiff. There was a good reason why the compromise should be made. Full allowance was made for the value of and credit given for the Confederate money received under duress by an old man in his eighth decade; and if ever a good consideration moved to an amicable and equitable settlement, it moved in this.

There is a declaration by Mitchell in his will that he owed no one but Jacob Short--eight or nine hundred dollars. It may be that by reason of that, the executors desired the regular probate of the claim. If so, it does not in the least militate against its being received as evidence of...