Portis v. Cummings

• Decision Date: 01 January 1855
• Citation: 14 Tex. 139
• Parties: D. Y. PORTIS AND WIFE v. S. A. CUMMINGS.
• Court: Texas Supreme Court

14 Tex. 139

D. Y. PORTIS AND WIFE

v.S. A. CUMMINGS.

Supreme Court of Texas.

1855.

It appears that the estate had been administered by the sale of the personalty and the payment of the debts, and the administration nearly if not quite completed in 1841. Nothing indeed appears to have been necessary to complete the administration but a final settlement and discharge of the administratrix. Though such settlement and discharge are not shown, yet, upon the authority of Murphy v. Menard, 14 Tex. 69, and other decisions there referred to, it must be held that the administration had been closed and the administratrix finally discharged before she was called by the appellee to account as admintratrix in the Probate Court in November, 1848.

Where an administration has been closed and the administrator discharged, or where such is the legal presumption from lapse of time, the heir, on arriving at full age, cannot call on the administrator to account in the Probate Court; his remedy is in the District Court.

Appeal from Austin. Administration upon the estate of John Cummings was obtained by the party appellant in 1839. The personal property of the estate appears to have been sold for cash by order of the court in October, 1840; and the administratrix then obtained an order giving her until the December Term thereafter to render an account of her acts in the administration of the estate. In January, 1841, she was cited to render an account of her administration to the Probate Court. And in the following February she did render an account, showing the payment of debts of the estate and a balance in the hands of the administratrix; which account was admitted and recorded. This was the last act which is shown to have been done by the administratrix in the matter of the succession. There is in the record no evidence of a final settlement and discharge from the administration. She was cited by the appellee as heir of her intestate to account in the Probate Court in November, 1849. The appellee arrived at full age in August, 1848.

Webb, Franklin, and Sayles, for appellants.

J. B. & G. A. Jones, for appellee.

WHEELER, J.

It appears that the estate had been administered by the sale of the personalty and the payment of the debts, and the administration nearly if not quite completed in February, 1841. Nothing indeed appears to have been necessary to complete the administration but a final settlement and discharge of the administratrix. Though such...