Smith v. Smith

• Decision Date: 01 January 1853
• Citation: 11 Tex. 102
• Parties: JAMES W. SMITH v. ELIZABETH SMITH AND OTHERS.
• Court: Texas Supreme Court

11 Tex. 102

JAMES W. SMITH

v.ELIZABETH SMITH AND OTHERS.

Supreme Court of Texas.

1853.

See this case for circumstances of delay, fraud, and trust, which entitled the plaintiff, who was an heir, to file a petition in the District Court to establish the property of the estate, and to obtain partition and distribution. (Note 23.)

Appeal from Travis.

I. A. & G. W. Paschal, for appellant.

J. A. & R. Green, for appellees. There are no circumstances of peculiarly equitable nature, to authorize Jas. Smith, the heir, to bring this suit. His demurrer admits the pending administration; and his bill admits that the administrator is bringing suits for the recovery of the property, in order that it may be distributed. To sustain this bill would be to cause a conflict in the jurisdiction of the County Court and District Court, and confusion in the final settlement of the estate; for it most clearly appears from the record, that the County Court had proper jurisdiction of the cause; and for the District Court to take jurisdiction also, would produce the evils of which we speak. It is for this reason that the heir will not be permitted to sue for property in possession of the administrator, or for the recovery of the assets of the estate in the hands of others, unless for some extraordinary reason, which reason must be alleged and proved to exist. Here there is no reason, for the administrator is not charged with any combination against the interest of the estate, but is shown to be taking a proper interest therein, by bringing all necessary suits.

But in this case there can be no pretense, it seems to us, that the proper forum for partitioning and distributing the estate, is the District Court; and the mere allegation of devastavit by a previous administrator, even if the suit for said devastavit be allowable by the heir, will not, of its own force, bring the partition into the District Court. This is a subject distinct and separate from the partition of the estate in the hands of the administrator, and might be partitioned by itself.

LIPSCOMB, J.

The appellant filed his bill or petition in the District Court of Travis county, praying a distribution of the estate of his father, James Smith. He alleges that his father died in 1845; that, on the 25th of March, A. D. 1845, the administration was committed to Elizabeth Smith, widow of his father, and Alfred Smith, two of the defendants; alleges various acts of maladministration (some of them will be noticed); that one of the defendants, Sidney P. Brown, claims now to be the administrator de bonis non on the said estate, and refuses to make distribution, upon the pretended ground that the administration is not closed, and that he has commenced suits to recover the property of the estate. The petition alleges that the estate was but very little indebted; that Elizabeth Smith, whilst administratrix, together with Alfred Smith, had sold property, and received a large amount of money, all of which is still in her hands, excepting about one thousand dollars; that the debts had all long since been paid off; charges that the administratrix pretends that a division had been made by order of that Court; charges that if any such partition and division were made, that the order was fraudulently obtained by the said Elizabeth, and that she had fraudulently induced the Court to believe that the property of the estate was community property, of which she was entitled to the one half, when in truth and fact, the most of the property, to wit: the slaves, were the separate property of his deceased father, acquired and owned by him before his intermarriage with the said Elizabeth that the lands belonging to the estate were purchased by his father, with his own separate funds; that the said Elizabeth is in the possession and enjoyment of the property of the estate; that, with the proceeds of sales of some of it, she has purchased property and taken the title in her own name, or in the names of some other of the defendants, who are her children; that the amount and description of such property, he cannot state. He charges that a tract of land amounting to some _____ acres at Montopolis, to which his father was justly entitled at his death, and had in his possession--that to the said land, the said Elizabeth and Alfred had since procured title in their own names; alleges that the property purchased with the funds of the estate, and the land in the name of the said Elizabeth and Alfred justly belong to the estate; alleges that he is an heir and distributee of the intestate and entitled to a share of the estate; that he has never received any part of said estate, excepting the use of one hundred acres of land, at the will of the said Elizabeth; alleges that he has recently attained his majority. These are the principal facts, believed to be material, in the petition. It is, however, more specific in the description of the property, and...