Mitchell v. De Witt

• Decision Date: 01 January 1857
• Citation: 20 Tex. 294
• Parties: ELI MITCHELL AND OTHERS v. CLINTON C. DE WITT AND OTHERS.
• Court: Texas Supreme Court

20 Tex. 294

ELI MITCHELL AND OTHERS

v.CLINTON C. DE WITT AND OTHERS.

Supreme Court of Texas.

1857.

Upon the death of the husband in 1840, the wife's interest in the community became liable to her disposition, subject to the community debts and the charges of administration. Her vendee took subject to the administration.

See this case for circumstances under which it was held that a sale by an administrator de bonis non, was valid against a purchaser from a distributee, where the latter had purchased during a hiatus in the administration of the estate, and it was claimed by him that when he purchased the administration was virtually closed.

Where there is really no question of fact in the case, upon the evidence introduced, the judgment will not be reversed because the court charged the jury to find in favor of the party in whose favor the law was. Ante, 111.

Appeal from Gonzales. Tried below before the Hon. Fielding Jones.

John K. Castleman died in 1840, leaving a widow, Sarah Castleman, and as part of his estate a league of land in Gonzales county, which he had purchased from Byrd Lockhart, and which was community property. On the 13th of November, 1840, said Sarah applied for letters of administration; at November term, order for letters to issue as prayed; December 1st, bond filed and approved; inventory and appraisement; February term, 1841, on petition of the sureties of said administratrix, they were discharged, and time was given till the first Monday in March to give a new bond. March 15th, petition of J. B. Hartin and G. P. Ellis, for letters of administration, alleging that the application was made with the consent of said Sarah; notices published. March 29th, new bond filed by said Sarah and approved, with Hartin and Ellis and two others as sureties. March 29th, also, petition of Wm. C. Brookfield for letters, representing himself as a creditor, and that the letters to said Sarah had been annulled. May 31st three of the sureties petitioned for release; granted at May term; June 1st, 1841, new bond filed and approved, with three sureties. October term, 1841, one of the sureties discharged on his application, and order for another in his stead. December term, 1841, order for new security not being complied with, letters revoked. Same term, order for appointment of Spencer Townsend as administrator of said estate. Bond filed and approved. Inventory of property, etc., handed over to said administrator. September 26th, 1842, petition by the administrator, on account of the intricacy of the business of the estate, to be allowed to employ counsel to assist him. September term, ordered that I. W. Burton, attorney at law, be appointed to aid the administrator in the settlement of said estate. November term, 1842, ordered that I. W. Burton, attorney for the administrator of said estate, be allowed till next term to make returns. January term, 1843, order that Martha Burton, surviving widow of I. W. Burton, deliver to Townsend, the administrator, all the papers, etc. January 29th, 1844, petition by Sarah McDonald, late Sarah Castleman, widow of John K. Castleman, alleging that the estate was not indebted when Townsend was appointed administrator, that petitioner had been appointed guardian of her three children James, Andrew and John, the only heirs of John K. Castleman, and praying that said administrator be required to make a final settlement of said estate, and that the said estate may be delivered to petitioner in her own right and as guardian, etc. Citation served on Townsend to appear at February term, etc. February term, account filed, in which the administrator charged himself with cash collected $29; and credited himself with $78.60, paid out, principally attorney's fees, costs of court, and taxes for the year 1841. Over $2,600 in claims due the estate were returned uncollected; there was also a list of real property belonging to the estate. At same term Townsend resigned, and William McDonald was appointed administrator de bonis non. September 29th, 1846, petition of William McDonald, representing that he had been unable to give security; that no person could be found who would or could administer on said estate; that the estate was still unadministered, and the papers in the clerk's office, among which were land certificates which ought to be located, and claims which would be barred by the statute of limitations if not soon attended to; that petitioner is guardian of the only heirs, John and Andrew Castleman, making profert of his letters of guardianship which had been issued by the probate court of Gonzales (the administration was in Houston county). Prayer that all the papers of the estate be delivered to petitioner, as guardian, in order that he might locate the land certificates, collect the claims and make the best disposition of the same possible for payment of the few outstanding claims against the estate; or if such order be not legal, then that petitioner be appointed special administrator without bond; or if such order be not legal, then that the court make such order herein as may save the estate, etc.

September term, 1836, letters of administration ordered to be issued to John Hartgraves, upon his giving bond, etc.

July 26, 1847, petition of Swonson Yarborough, representing said estate to be still unadministered; alleging that McDonald had long since deserted the said Sarah his wife; that she was non compos mentis, and utterly destitute; that petitioner, from motives of humanity, had taken her to his house, etc. July term, 1847, order for issuance of special letters of administration to said Yarborough, upon his giving bond, etc. Bond given and approved. September term, 1847, after notice, said Yarborough was appointed general administrator de bonis non, and gave bond, etc. Inventory filed July 29th, 1848; and same day petition filed for order to sell certain property, and for continuation of the administration one year. July term, order for publication of notice to the absent heirs; and that the administration be continued one year from next September term. Same term, appraisers appointed to appraise all the property of said estate in Gonzales and Walker counties, where the land lay for the sale of which the administrator had applied. Citation returned executed. August term, continued. September term, leave to administrator to amend his petition for order of sale. September 25th, amendment of petition accordingly, stating that the administrator had cause to believe that...