Moore v. Hardison
| Citation | 10 Tex. 467 |
| Parties | MOORE, ADM'R, v. HARDISON |
| Decision Date | 01 January 1853 |
| Court | Supreme Court of Texas |
A certiorari lies to revise the approval of a claim by the Probate Court.
When a proceeding of the Probate Court is brought into the District Court by certiorari, it must be tried de novo, in all respects as if it had been removed by appeal.
The allowance by an administrator of a claim barred by the statute of limitations will not bind the estate. (Note 84.)
It seems that the presumptions in favor of the judgment of the District Court, where there is no bill of exceptions nor statement of facts, are independent of any pleadings in cases which originate in the Probate Court. (Note 85.)
Appeal from Shelby. The proceedings in this case were instituted by a petition on the part of the appellee to the Probate Court for an order requiring the administrator de bonis non to pay a claim against the succession of the intestate that had been presented to and allowed by the former administrator and ranked among the acknowledged debts of the estate. The claim on its face appeared to be barred by the statute of limitations before its presentation and allowance. The Probate Court made the order that the administrator should pay the claim, and also return an account of his administration. The administrator filed his petition for a certiorari, setting forth error in the order of the judge of the Probate Court in ordering the claim to be paid, because that it appeared to have been barred by the statute of limitations before its presentation and allowance by the former administrator. The certiorari was awarded, and in the District Court the appellee moved to dismiss the petition because it showed no ground for exercise of the jurisdiction of the District Court by certiorari, and also answered, setting the presentation and allowance of his claim by the former administrator. The motion to dismiss was overruled, and the parties waiving a jury submitted the cause to the decision of the judge, who affirmed the judgment of the Probate Court, from which the administrator appealed. There was no bill of exceptions nor statement of facts.
J. M. Ardrey, for appellant. In 12 Wharton, 565, Thompson v. Peter, 1 Wheaton, 71, 7 Watts, 420, 7 Conn. R., 178, the authorities are distinct that the acknowledgment of the debt by the administrator will not take the case out of the operation of the statute as to the estate; that the common law made him liable only personally; and it was questioned whether without a sufficient consideration it is not obligatory upon him. No promise of the executor or administrator could operate to defeat the statute when pleaded by the administrator de bonis non. (Thompson v. Brown, 16 Mass. R., 178.) A promise made by an administrator so as to take a case out of statute of limitations is not binding upon the heirs or distributees. The promise is a personal one, which binds the administrator if supported by a sufficient consideration. .) An executor or administrator is bound to plead the statute of limitation. (Thompson v. Brown, 16 Mass. R., 172;Brown v. Anderson, 13 Mass. R., 201; Dawes v. Shed, 15 Ib., 6.)
Henderson & Jones, also for appellant. I. In considering whether there was any error in the judgment of the District Court affirming the judgment of the Probate Court in this cause we shall attempt to establish the following propositions:
1st. That the decree of the Probate Court approving of the claims in this case is a proceeding which may be revised and corrected on certiorari.
2d. That in revising the proceedings of the Probate Court the District Court is not confined to an inspection of the transcript sent up by the county clerk, and if it sees nothing there which may not be aided by some possible presumption, must affirm the judgment of the Probate Court, but that it proceeds to try the cause as if it were an original proceeding in the District Court. 3d. That no presumption can be made in favor of the judgment of the District Court that is not consistent with the pleadings, and if the cause of action as set out in that court does not appear to be a good and sufficient one no presumption of proof will be admitted in its support.
4th. That the claims against the estate of Matthew Moore appear on the face of the pleadings and elsewhere on the record to be not valid and binding on the estate; and that therefore the judgment of the District Court approving them and classing them as acknowledged debts to be paid out of the estate is erroneous and should be reversed.
II. No presumption can be made in favor of the judgment of the District Court which is not consistent with the pleadings; and if the cause of action as set out in that court appears to be not a good and valid one, it can be helped by no presumption of proof. (1 Tex. R., 224; 2 Id., 189, 376, 594;3 Id., 168, 305, 317, 336;4 Id., 422, 486, 492.)
O. M. Roberts, for appellee. The pleadings in the Probate Court are not what is understood by pleadings in the District Court. They are in the Probate Court nothing more than the conversations of the parties before the court reduced to writing, not being required or prescribed by statute. See Hart. Dig., p. 347, act of 1836, which was in force when these pleadings were filed. The Probate Court cannot be bound by nor act upon an issue that the parties may form in these conversations respecting their respective rights, but being by this means informed of their views and wishes it must act on what appears of record in its own court, and upon such facts aliunde as may be established by the parties before the court.
To have determined the facts involved in this proceeding the court must have had before it the record of Gabriel H. Moore's appointment. The order of the judge ranking these as acknowledged claims, the claims themselves with the indorsement of the administrator, and if the indorsement had no date, then proof of when it was made; if dated beyond the twelve months, then proof of its being presented within twelve months and of the accidents, mistakes or other equitable circumstances by which the written acknowledgment will relate back; and if the claims appeared on their face to be barred by four years limitation at the time they were presented and allowed, then the proof of the absence of Matthew Moore, deceased, from the State, sufficient time to prevent the statute from barring the claims, &c.
These facts or such other facts as are necessary to support the judgment of the court will, in the absence of a bill of exceptions and statement of facts, be presumed to have been before the court in determining the cause.
Several questions have been raised by the appellant's counsel, and discussed with great ability, both orally and by his brief.
On the first question--the right of the administrator to have the order of the probate judge revised in the District Court--we believe this right cannot be questioned, and that it is not only given by statute, but that it could have been exercised under that court's general jurisdiction to prevent error and great injustice to the parties.
On the question how the case shall be tried after it is brought into the District Court, there may be some difference in opinion whether it is to be tried upon the record of the Probate Court only, or upon the record and upon facts to be proven on the trial, both. We believe that it should be tried upon the record and proof of such facts on the trial as may be essential to enable the District Court to form a correct judgment in revising the proceedings of the Probate Court. This conclusion, it is believed, can be sustained, first, by a fair construction of the statutes, and, secondly, by a necessary implication resulting from the organization of the Probate Court, the proceedings of which are sought to be corrected by a resort to the District Court....
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