Rogers v. Kennard

• Decision Date: 10 November 1880
• Docket Number: Case No. 631.
• Citation: 54 Tex. 30
• Parties: POLLY ROGERS ET AL. v. W. E. KENNARD ET AL.
• Court: Texas Supreme Court

54 Tex. 30

POLLY ROGERS ET AL.

v.W. E. KENNARD ET AL.

Case No. 631.

Supreme Court of Texas.

Nov. 10, 1880.

APPEAL from Johnson. Tried below before the Hon. D. M. Prendergast.

Appellants brought trespass to try title to recover 1,920 acres of land located and surveyed in 1849 by virtue of a bounty land warrant issued after the death of Eliel Melton, in 1861. The land was patented to the heirs of Eliel Melton in 1861.

The plaintiffs in their petition set up title through an instrument executed by Tabitha Melton to her then widowed daughter, Polly Echols. Eliel Melton, deceased, was at the time of his death a single man, leaving no children surviving him. The defendants in support of their title averred that 1,420 acres of the land in controversy was sold under an order of the district court of Navarro county for the payment of debts, by Ethan Melton, the administrator. That Stroud Melton became the purchaser and paid the purchase money, and that the sale was reported to the court, and duly confirmed. The sale, under the order of court, the purchase by Stroud Melton, the payment of the purchase money, and the report of sale by the administrator, were all proven as alleged. There was no positive evidence in the record of the confirmation of the sale by the court. The transcript of three hundred pages shows eighteen assignments of error, and contains evidence of many issues in the court below, which, in view of the opinion, it is not necessary to notice.

Tabitha Allen, on August 27, 1836, executed a power of attorney to Ethan Melton, then living in Alabama, to demand, receive and recover all goods, chattels and effects to which she might be entitled as heir of Eliel Melton, deceased. The power was ample and invested him with full discretionary powers.

The plaintiff introduced in evidence a certificate for 1,920 acres of land, issued from the war office of the republic of Texas, March 30, 1839, signed A. Sydney Johnson, Secretary of War, which recited that it was for service, and that E. Melton had been killed at the Alamo, and that “this is his certificate.” It concluded, “And the said E. Melton, or his heirs, is entitled to hold said land, or to sell, alienate, convey and donate the same, and to exercise all ownership over it.” On that certificate a patent issued to the heirs of Eliel Melton, February 19, 1861.

Plaintiffs also read in evidence a writing from Tabitha Melton to her daughter, Polly Echols, and others, Tabitha Melton being the mother of Eliel Melton, deceased. It was made in October, 1850; on its face it purports to be made for “many kind and valuable services,” and for affection, and conveys all the property inherited from her son, Eliel Melton. The instrument closes with this language: “But it is understood further, that the lands, etc., given and conveyed to my daughter Polly by this deed, and which is an equal share with the children herein mentioned, are given and conveyed subject to the reservations and conditions: the said lands are hers for life, subject to none of her present debts or liabilities, or the use, debts or liabilities of no future or past husband, and at her death to be divided between the six children specified in this will, share and share alike, and to be given and divided between no other person or persons.”

At the fall term, 1855, of the district court of Navarro county, certain heirs of Eliel Melton filed their petition, alleging in substance:

1st. That administration was pending on the estate of Eliel Melton.

2d. That Ethan Melton, also an heir, and the administrator, had disposed of the property of the estate in violation of law; that he had made extravagant charges and been guilty of gross negligence.

3d. That the administration had been pending sixteen years and they could not enforce a settlement of the same.

Prayer for the removal of the administration from the probate court, and for final settlement and distribution. The case, after lengthy defenses filed by the administrator, was, at the fall term, 1858, submitted to the court without a jury, and judgment being rendered for defendant, the administrator was ordered to sell enough land to pay all claims against the estate. In pursuance of this order, land was sold and report thereof made.

Hood & McCall, for appellants.

Hunter & Putman, for appellant intervenors.

D. T. Bledsoe, for appellees.

Brown & Hall, also for appellees.

[In this case, while written arguments of ability had been filed by the counsel on both sides before the adoption of the present rules, no briefs were on file, as required by existing rules, and a condensed notice would not do justice to either argument.]

BONNER, ASSOCIATE JUSTICE.

We shall confine this opinion to the leading and controlling questions in the case which have been argued by counsel.

I. Was the grant of letters of administration to Ethan Melton valid, he not having been next of kin to the deceased?

Eliel Melton, the deceased, was a citizen of Texas, and hence the provisions of the statute (Pasch. Dig., art. 1400), prohibiting administration to be granted upon the estates of members of the Georgia Battalion and other volunteers from foreign countries, to any than the next of kin, did not apply.

The probate court had jurisdiction over the subject matter and sufficient authority, under the power of attorney from Tabitha Melton, the mother and next of kin, to grant the administration to Ethan Melton, and its judgment in this particular cannot be collaterally impeached. Murchison v. White, infra.

II. Was the land in controversy assets of the estate of Eliel Melton, or was it a donation to his heirs and not subject to administration?

It does not satisfactorily appear under what law the bounty warrant for 1,920 acres of land was issued. It is, however, sufficient for the purposes of this case, to say that it was issued by the proper authority, the secretary of war; that it was, years subsequently, approved by the commissioner of claims appointed for this purpose, and was acted upon as a valid claim by both the commissioner of the general land office and the governor of the state, by the issuance of a patent thereon to the land in controversy.

It purports on its face to have been a bounty warrant in consideration of the services of Eliel Melton in the army and his fall at the Alamo, and as such is contradistinguished from a subsequent claim issued to his heirs as a donation warrant.

This bounty warrant, we must presume, was issued by virtue of some law or regulation recognizing either an express or implied contract, or pre-existing obligation on the part of the government of Texas, to those gallant soldiers who had enlisted in her armies and had fallen in her defense, and hence under former decisions of this court became assets in the hands of the administrator. Soye v. McCallister, 18 Tex., 80;Soye v. Maverick, 18 Tex., 101;Allen v. Clark, 21 Tex., 404;Goldsmith v. Hern don, 33 Tex., 705;Marks v. Hill, 46 Tex., 345.

It differs from those cases where a gift has been made by the government as a pure donation, generally by special legislation. Eastland v. Lester, 15 Tex., 98, commented on in Soye v. Maverick, 18 Tex., 101;Causici v. La Coste, 20 Tex., 286;McKinney v. Brown, 51 Tex., 97.

III. Was the purported deed from Tabitha Melton to Polly Rogers et al., under which the plaintiffs claim, a deed or a will?

In a proper case, where there is such ambiguity connected with an instrument as to forbid that the court, as a question of law, should construe and declare its legal effect to be either a deed or a will, this issue should be submitted to the jury as a question of fact. Ferguson v. Ferguson, 27 Tex., 344.

The instrument under consideration was recited in its commencement to have been an indenture, further on it is called a deed, and near the end it is styled a will.

In its general form it was a deed.

We are of opinion that the testimony adduced on the trial pertained rather to the question of its delivery as a deed, than to that of whether a deed or a will.

There were several issues submitted to the jury, this among others, upon the determination of which, in the affirmative or negative, they could find either for the plaintiffs or defendants, and we have no means of ascertaining upon which the general verdict for the defendants was based.

If it be conceded that there was sufficient ambiguity connected with the purported deed as to have authorized the submission to the jury, whether a deed or a will, then we are of opinion that the burden of proof to show that it was a will was upon the defendants, and that, as now presented by the record, the evidence was insufficient to support the verdict, if based upon this issue.

IV. Could the plaintiffs sue for the land, pending administration upon the estate of Eliel Melton?

The court charged the jury substantially, that, if the administration was still pending, this suit should have been brought by the administrator, and that the plaintiffs could not legally have instituted or prosecuted it, and that in this event they should find for the defendants.

That this is the general rule under our probate system cannot be questioned either upon principle or authority.

There are, however, exceptions to this general rule also well established.

In Crain v. Crain, where a similar question was before the court, it is said:

“As to the other ground, that the action is premature, the succession not being closed, it is only necessary to say that the administratrix is a trustee, acting for the benefit of creditors and distributees, and that in cases where she will not or cannot act for the protection and preservation of the estate, the cestui qui trusts have a right to act in the behalf and for the protection of their eventual interests, and that such rights are the proper subject of judicial cognizance.” 17 Tex., 87.

It is said in Patton v. Gregory that there are exceptions to this general rule as well established as the rule itself. That the...