Murphey v. Menard

• Citation: 11 Tex. 673
• Parties: MURPHEY, ADM'R de bonis non, v. MENARD.
• Decision Date: 01 January 1854
• Court: Supreme Court of Texas

11 Tex. 673

MURPHEY, ADM'R de bonis non,

v.MENARD.

Supreme Court of Texas.

1854.

Section 121 of the Act of March 20th, 1848, to regulate proceedings in the County Court, pertaining to estates of deceased persons (Hart. Dig., Art. 1230), is not unconstitutional on the ground that it contains matter not embraced in the title of the Act. (It provides for a revision in the District Court of the settlement of the accounts of executors and administrators.)

An administrator de bonis non cannot sustain an action under the 121st Section of the Act of March 20th, 1848, to regulate proceedings in the County Court, pertaining to estates of deceased persons (Hart. Dig., Art. 1230), nor under any other Section of that Act, nor on general principles, in the District Court, to revise the settlement of the account of a former administrator. Such proceeding lies at the suit of a creditor, legatee, or distributee, only. (Note 92.)

It seems that the only action which an administrator de bonis non can have against a former administrator is on the bond, not for maladministration or a devastavit, but to recover any amount that is shown to be due by the settlement of such former administrator's final account. (Note 93.)

Appeal from Liberty. This suit was brought by Murphey, as administrator de bonis non, against Menard, as the former administrator upon the estate of Lynch, to set aside the final settlement of his accounts as administrator, by the Probate Court, under the provision of Article 1230 of the Digest. The petition was filed in May, 1851. It states the appointment of the defendant as administrator in 1841. It charges him with having wasted and squandered the effects of the intestate, even before the grant of his letters of administration, and with maladministration generally. It states that in October, 1843, he filed an exhibit in the Probate Court of the assets and liabilities of the estate, showing that there had come into his hands the sum of sixteen thousand four hundred and eighty-three dollars belonging to the estate; that he, at the same time, filed sundry vouchers for sums which he claimed to have paid out; none of which, except the sum of sixteen hundred and fourteen dollars, were allowed by the Court on settlement with the administrator, as being evidenced by proper vouchers; that he afterwards neglected and refused to come forward and make any other or further showing of the condition of the estate, though often cited by the Probate Court so to do, until, in January, 1848, his letters of administration were revoked; that afterwards, in May, 1849, he applied for and obtained a final settlement of accounts with the estate; that it was made without process to bring any party into Court; that in this settlement vouchers were allowed him by the Court to the amount of $13,451, which left a balance of $2,497 in his favor, for which the Court rendered judgment against the estate; that many of these vouchers had probably been disallowed by the Court nearly six years before; that the vouchers so allowed were not legal vouchers; that if for debts that ever existed, they were not properly established or authenticated; that they were paid illegally and fraudulently, and without proper proof, or authority from the Probate Court, and after they were barred by limitation; and that the estate was thereby defrauded in the sum of $15,948; that the estate was not legally represented in the Court at the time of the settlement, and that it was illegally and fraudulently procured and made; and the petitioner prays that the settlement, and judgment therein rendered by the Probate Court in 1849, be set aside and annulled; or if it be not deemed to be void for fraud and the want of jurisdiction in the Probate Court, that said settlement be revised and corrected, and for general relief.

There was a demurrer to the petition sustained, and the plaintiff appealed.

E. B. Pickett, for appellant. It is further contended that this suit cannot be maintained, because an administrator de bonis non is not a person interested in the estate in the sense of the Section, so as to enable him to maintain this suit. It is believed this objection will be found to have but little force, when the tenor and spirit of the Act of 1848 are considered. It is the duty of the Courts to carry into effect the intentions of the law-making power. To get at these intentions, and to construe a law correctly, the whole law must be taken together.

Some other portions of the law may throw much light on that part that seems not clear.

When the 115th Section of the Act is compared with the 121st, it is believed no doubt will exist that the Legislature intended to include administrators de bonis non in the 121st Section.

B. C. Franklin, for appellee. The appellee insists that the judgment was rightly rendered.

1st. Because Article 1230, Hartley's Digest, is unconstitutional and void; the same being in violation of the 24th Section, General Provisions of the State Constitution. “Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” (Hart. Dig., p. 73.) The title of the Act, of which Article 1230 is a part, is, “An Act to regulate proceedings in the County Court, pertaining to estates of deceased persons.” Article 1230 confers jurisdiction on the District Court and prescribes what shall be done in the District Court. The County Court could do no act under this Article; nor does it regulate any proceeding in the County Court.

2d. The plaintiff sues as “administrator de bonis non.” An administrator de bonis non can maintain an action only for those articles which remain unadministered. (Kelsy v. Smith, 1 How. Miss. R., 68.) He cannot sue the first administrator for devastavit; the extent of his commission being to administer the effects unadministered. (Stubblefield v. McRaven, 5 S. & M., 130;Byrd v. Holloway, 6 Id., 323; Miller v. Womack, Frem. Ch., 486.)

An administrator de bonis non cannot sue on the bond of the first administrator for any maladministration on his part; but can only sue upon it to recover the value of specific property of the intestate...