Nickelson v. Ingram

• Decision Date: 01 January 1860
• Citation: 24 Tex. 630
• Parties: J. L. NICKELSON v. MARGARET INGRAM.
• Court: Texas Supreme Court

24 Tex. 630

J. L. NICKELSON

v.MARGARET INGRAM.

Supreme Court of Texas.

1860.

A judgment sustaining a demurrer to a petition, for want of form and of proper parties, is not a bar to another suit for the same cause of action. Its effect is, not to decide that the claim is an invalid one, but merely that the suit brought, cannot be sustained in that form and against those parties.

Letters of administration ought not to be granted to a married woman, if her husband refuse to join in the administration; and if such refusal be apparent on the face of her petition for letters, the application must be refused.

The holder of a promissory note, executed by a married woman only, without her husband joining in it, is, without evidence as to its consideration, such a creditor of her estate, as entitles him to assert a right to letters of administration thereon.

APPEAL from Victoria. Tried below before the Hon. Fielding Jones.

This suit was commenced in the county court on the 14th of June, 1859, by the application of Margaret Ingram, the wife of James Ingram, for letters of administration on the estate of Julia A. Nickelson, deceased, the wife of John L. Nickelson.

The petition of the applicant alleged that at the preceding April term of that court she had applied for letters of administration; that John L. Nickelson, the husband aforesaid, had successfully contested her right, and that they were granted to him on the usual terms of giving the bond and taking the oath prescribed by law; but that he had failed to give the bond, or to qualify in accordance with the said appointment; whereby the succession of said estate remained vacant. She claimed the right to administer on the ground that she was the principal, if not the only, creditor of the estate. The petition further alleged that she filed the application for letters of administration alone, her said husband, James Ingram, having consented thereto, but refused to join her in the application.

The following objections to the granting of the letters were made by John L. Nickelson, to wit: 1st. That the deceased, at the time of her death, was not indebted to the said applicant, nor to any other person, in any manner which rendered her separate property liable therefor. 2d. That the applicant wished to procure the administration for the purpose of establishing a pretended claim against the said estate, which had been pronounced by the judgment of the district court of Victoria county, illegal and unfounded, and not a subsisting claim against the estate.

Upon the hearing in the county court the applicant filed exceptions to the objections, and excepted to the right of Nickelson to make opposition, because of his having been appointed administrator on the said estate, and failed to qualify under the appointment. These exceptions were sustained, and an order was made that letters of administration should issue to the applicant, upon her compliance with the requirements of the law. From this order, an appeal was taken by Nickelson to the district court.

In the district court, the cause was submitted without the intervention of a jury, and the appellant offered and read in evidence, the record of a case, in which James Ingram and Margaret Ingram, his wife, were plaintiffs, and John L. Nickelson and Clara Nickelson, a minor, were defendants, instituted in the district court of Victoria county, on the 20th of April, 1858, and determined on the 28th of February, 1859. This suit was founded on a promissory note, made by the deceased, whilst she was a married woman, of the following tenor:

“Victoria, March 3d, 1855.

Twelve months after date, I promise to pay Margaret Ingram, the sum of two hundred dollars cash, with ten per cent. per annum interest from date, for value received of her.

JULIA A. NICKELSON.”

The plaintiffs alleged the death of the maker, and that no administration had been had on her estate, and that the defendants, as her surviving husband and child, were her sole heirs, and possessed all the property owned by her at her death, which was sufficient to pay all debts against the estate; and they prayed for judgment against the defendants for the amount of the note, with interest and costs.

The defendants demurred to the petition, and set forth the following causes of demurrer, to wit: 1st. That there was a misjoinder of parties defendant. 2d. That the petition showed that the maker of the note was a married woman, and did not state a case within the exceptions of the statute, in which a married woman could make a valid contract. 3d. That the said claim had not been sworn to, and presented for acceptance before suit brought, as required by law. 4th. That the petition set up a claim against the heir of the intestate, and set up the same claim as an individual debt of one of the defendants. 5th. That it sought to make the defendant, J. L. Nickelson, liable on a contract not made by him in person, or by his agent for him.

There were several amendments to the petition, and also additional exceptions to the sufficiency thereof, which need not be here set out. The demurrer was sustained, and judgment rendered in favor of the defendants for the costs of suit.

After the introduction of the foregoing record, the appellee offered in evidence the note above described and set forth. The court thereupon affirmed the judgment of the county court, granting letters of administration to the appellee.

A. H. Phillips, for the appellant.

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