Mosely v. Gray

• Decision Date: 01 January 1859
• Citation: 23 Tex. 496
• Parties: ISHAM MOSELY, ADMINISTRATOR, v. W. M. GRAY.
• Court: Texas Supreme Court

23 Tex. 496

ISHAM MOSELY, ADMINISTRATOR,

v.W. M. GRAY.

Supreme Court of Texas.

1859.

In a suit by the administrator of an estate, to annul the allowance and approval of a claim, on account of mistake, or ignorance of facts, in the allowance and approval thereof, the burden of showing that the claim was not a valid subsisting one, is upon the plaintiff.

In a suit of this character, alleging the ground of invalidity to be, that the claim was barred by limitation, when it was allowed; the fact that it appears on its face to have been barred, is not sufficient to sustain the petition; and the jury should be instructed, on such a state of facts, to find against the plaintiff.

APPEAL from Henderson. Tried below before Roger Q. Mills, Esq., special judge by the selection of the parties; the presiding judge having been of counsel.

This suit was brought on the 31st of March, 1858, by Isham Mosely, administrator of the estate of John Blackwell, deceased, against William M. Gray, as the holder and owner of a promissory note for $215, dated July 1, 1852, and payable December 25, 1852, which had been executed by the plaintiff's intestate, in favor of the defendant.

The petition alleged, that the claim was presented, allowed and approved, on the 23d day of February, 1857; but that the same was allowed, “through a mistake and misapprehension of the facts.” Prayer to annul and set aside the approval and allowance of the claim.

The defendant filed a demurrer, and special ground of demurrer; which, however, were waived on the trial. The plaintiff read in evidence, the note, affidavit as to the justness of the claim, etc., with the indorsements of allowance and approval; which was all the testimony in the cause.

The court charged the jury to find a verdict in favor of the defendant; which they did, and judgment was rendered, in accordance with it, against the plaintiff for costs, to be paid by the estate aforesaid, in due course of administration.R. F. Dunn, for the appellant.

T. B. Greenwood, for the appellee.

BELL, J.

It has been repeatedly decided by this court, that where an executor, or administrator, allows a claim against the estate which he represents, from mistake or ignorance of the facts, which constitute its invalidity, or from fraudulent representations, on the part of the holder of such claim, such executor, or administrator, may sue in the district court, and have the allowance of such invalid claim annulled. Neill v. Hodge, 5 Tex. 487...