Paul v. Willis

• Decision Date: 08 November 1887
• Citation: 7 S.W. 357
• Parties: PAUL <I>et al.</I> v. WILLIS <I>et al.</I>
• Court: Texas Supreme Court

7 S.W. 357

PAUL et al. v. WILLIS et al.

Supreme Court of Texas.

November 8, 1887.

Commissioners' decision. Appeal from district court, Bell county.

C. A. Willis and others brought an action of trespass against J. T. Alexander and others, to try the title to certain real estate in Bell and Falls counties, Tex., both parties claiming as heirs of Matthew Byrne, deceased. J. M. Paul and others, as intervenors, claimed title to said lands against both

plaintiffs and defendants, under an administrator's deed. Matthew Byrne had emigrated to Texas at an early day, and was entitled to the land in controversy as a colonist, but the patent was issued after his death to his heirs. He was killed in 1836, and in 1846 his brother, John Byrne, applied for letters of administration, to the probate court of Galveston county, stating that deceased had been killed in the massacre of Goliad in 1836; that there had been no administration; and that he was deceased's only brother. Notice was ordered, and letters granted, and an inventory of the land in controversy was returned as deceased's only property. Seven years later, A. F. James filed an application in said court for letters de bonis non on said estate, representing that he, as agent of one Jacob De Cordova, had made diligent search for the said John Byrne's administrator, and could not find him, and that he had for collection for said Cordova a claim against said deceased, which would be lost if such administration were not granted. Letters were so granted to A. F. James, and the land regularly sold to James Paul, under whom intervenors claim. Judgment for plaintiffs against intervenors and defendants, Alexander et al., and intervenors appeal.

Monteith & Furman, for appellants. Geo. W. Taylor, Harris & Saunders, and W. K. Saunders, for appellees.

COLLARD, J.

It was shown that 10 years had expired after Matthew Byrne fell at Goliad before there was any administration taken out upon his estate, and then the administration was opened in Galveston county, by the petition of John Byrne, brother of deceased, which alleged no fact showing any necessity for an administration. All debts were presumed to have been paid, and none are shown to exist. The estate of which decedent died possessed, and all to which he was entitled, had long since vested in his heirs. Certainly, after Byrne had been dead for so great a lapse of time, no legal administration upon his estate could be had without alleging some facts which would show a necessity for it. It would be conclusively presumed to be unnecessary and illegal, without such a showing. There was but one jurisdictional fact alleged in the petition for letters of John Byrne. It was not alleged where his estate was situated, or in what county he resided, but it was alleged that he was killed in the Goliad massacre. This fact appeared affirmatively in the petition, and this was sufficient to establish the fact that Galveston county had no jurisdiction of the estate. The law in force at that time — the act of 1846, which took effect the 13th of July — gave jurisdiction to counties upon estates of deceased persons — First, in the county where he had a fixed domicile or residence; second, where he owned real estate; or, third, where his principal effects were; and, fourth, where he died. The law of 1840 contained the same provisions. See Hart. Dig. arts. 1030, 1087. The petition did not show any fact that would give Galveston county control of the estate, but did show that he died in another county. If we look to evidence aliunde the record, we learn that his residence was in San Patricio county, and his estate was also there; but we are not called on to look beyond the record itself, nor would it ordinarily be permissible, under the views expressed in Murchison v. White, 54 Tex. 81. We take the petition itself, and from that we see Galveston county was not the proper county for the administration, if any could have been granted.

But this administration was allowed to lapse. Nothing was ever done by the administrator, and no order was ever taken in the succession after the inventory was filed. In 1853, seven years after the inventory was filed, A. F. James applied for letters, showing no grounds for opening the succession, except that De Cordova had employed him to collect a...