Thompson v. Duncan

• Decision Date: 31 December 1846
• Citation: 1 Tex. 485
• Parties: HIRAM M. THOMPSON v. JOHN DUNCAN
• Court: Texas Supreme Court

1 Tex. 485

HIRAM M. THOMPSON

v.JOHN DUNCAN

Supreme Court of Texas.

December Term, 1846.

Appeal from Matagorda County.

The whole estate of a testator or intestate passes, at his death, to his personal representative for administration, and hence an executor or administrator may sue in his own name and character for the recovery of lands belonging to the estate of his testator or intestate. [2 Tex. 311, 433;3 Id. 427, 428;9 Id. 25;11 Id. 87;16 Id. 413;20 Id. 81;24 Id. 441.]

Trespass to try title. The suit was brought to the March term, 1842, of the district court of Matagorda county. The petition is in the usual form, alleging the title to the land to be in the estate of Jesse Thompson, deceased, and that the possession is unlawfully held by the defendant Duncan. It also alleges that the appellant was “duly appointed administrator of said Jesse Thompson, who died intestate, and he now brings into court a copy of his letters of administration.” The copy of the letters thus referred to forms a part of the transcript of the record and shows that the appellant was appointed administrator on the 19th of December, 1834.

The defendant in the court below demurred in the following words: “The defendant comes and says that he is not bound by the law of the land to answer this petition, because he says that the plaintiff as administrator has no right to maintain such an action against him.”

The demurrer was sustained and the suit dismissed, from which the plaintiff appealed.

J. W. Harris, for appellant.

No briefs filed.

J. Webb, for appellee. The letters of administration show that the appellant was not the administrator of Jesse Thompson, deceased, at the time the suit was brought: He therefore had no right to sue as such, and the objection was properly presented by the demurrer. By the law of Spain no one could hold the office of executor or administrator for a longer period than twelve months. He was functus officio after that time, and the estate went to the heir; or if he were absent or a minor, to a curator appointed for him. Johnson's Laws of Spain, 143-4.

The law of Louisiana was adopted in 1835 by the consultation (see Ordinances p. 136, sec. 3) as the law of Texas, in relation to successions; and by that law curators were compelled to close their administrations at the end of one year from their appointment, unless for good cause the term were extended by the judge; but in no event could it be extended to a longer period than five years. Civil Code, arts. 1179, 1197, 1199; 3 Mart. (N. S.) 601.

By the 32d section of the act of December 29, 1836, “organizing inferior courts, etc.,” it was made the duty of the several probate courts to compel a settlement of all estates previously administered upon within twelve months from the passage of the act. 1 Laws Texas, p. 154.

This was the first law enacted upon the subject after the revolution, and it remained in force until the passage of the act of 5th February, 1840, “regulating the duties of probate courts and the settlement of successions,” the 32d section of which declares, “that the term of the administration of the succession is fixed at one year from the day of appointment of the administration,” etc., but the probate court may extend the time on good cause shown. The 60th section of the same act makes it the immediate duty of the probate courts “to cause all executors and administrators to whom letters of administration have been granted twelve months previous to the passage of this act, to appear before them” and settle their accounts as executors and administrators. 4 Laws Texas, 120, 129.

This suit was brought seven years after the appointment of the appellant to the curatorship of Jesse Thompson, and by no law which was in force at the time or subsequent to his appointment could he have been the administrator when the suit was instituted. No extension of his term within the prescribed limits of the law would have made him so. By the law of Louisiana his term had expired two years before, even if it be admitted that it had been extended to the utmost limit of the five years; and he was not relieved by the act of 1840, because he was out of office before that act was passed.

But if the appellant were the administrator at the time the suit was brought, he did not present such a case in his petition as entitled him to recover. By our statute of distribution, and by the common law which was adopted in 1840, the real estate goes to the heirs. The administrator has nothing to do with it, unless it becomes necessary to dispose of it for the payment of the debts in default of personal assets. To entitle the administrator to sue for it in his own name as administrator, he should have alleged the...