Suhre v. Benton

• Decision Date: 14 March 1894
• Citation: 25 S.W. 822
• Parties: SUHRE v. BENTON et al.
• Court: Texas Court of Appeals

25 S.W. 822

SUHRE v. BENTON et al.

Court of Civil Appeals of Texas.

March 14, 1894.

Appeal from Wilson county court; A. D. Evans, Judge.

Action by H. Suhre against M. F. Benton and another. From a judgment for defendants, plaintiff appeals. Reversed.

B. F. Ballard, for appellant. W. E. Goodrick and J. B. Polley, for appellees.

JAMES, C. J.

It was alleged, in substance, by plaintiff, H. Suhre, that T. T. Leach had died in 1890, indebted to him in an amount for goods sold and delivered, an itemized statement of which was annexed as an exhibit, showing a balance sued on of $507.78. That Leach had willed his property, of the value of $20,000, to his widow (now Mrs. Benton), who had received it, and that the testator's indebtedness at the time of his death did not exceed $500 in addition to the claim sued on. As the claim appeared to be barred at the time of the suit and at the date of Leach's death, plaintiff, by supplemental petition, pleaded a letter written him by defendant (then Mrs. Leach) on March 20, 1891, as follows: "Nockernut, Wilson Co., Texas, Mch. 20/1891. Mr. H. Suhre — Dear Sir: I have had your statement investigated, and found no error. I will just state to you that before my husband died he told me there was about $40.00 (forty dollars) in deposit with you, but we will not fall out over a few dollars. I guess I should have responded sooner, but kept putting it off until now. Very respectfully, M. F. Leach." Plaintiff further alleged that the statement referred to in said letter was the one sued on, and that the letter was such an acknowledgment as removed the bar of the statute. A special demurrer on the ground of the statute of limitations was sustained, and, plaintiff declining to amend, the cause was dismissed, and this appeal taken.

Under the allegations made by plaintiff, the widow had, under a general devise, become the owner of all of T. T. Leach's property, in value greatly in excess of his debts, and had received the same. These facts would render her liable for plaintiff's claim, if valid and subsisting. It is not necessary to consider how far, if at all, an executrix, as such, may waive the statute of limitations, for in this case the defendant appears to have been not only executrix of the will, but the sole devisee and legatee, and had taken possession of the property of the estate. In Howard v. Johnson, 69 Tex. 658, 7 S. W. 522, strong reasons are stated why an independent executor may be capable of waiving the statute before the claim has become barred. In the...