Tippett v. Mize

• Decision Date: 30 April 1867
• Citation: 30 Tex. 361
• Parties: ANDREW TIPPETT, ADM'R, v. L. G. MIZE ET AL.
• Court: Texas Supreme Court

30 Tex. 361

ANDREW TIPPETT, ADM'R,

v.L. G. MIZE ET AL.

Supreme Court of Texas.

April, 1867.

Sales by an administrator must be made in the manner provided by law, and if made at a place and time other than those prescribed by the statute or decree, they are not only irregular, but void. 6 Tex. 554;27 Tex. 73.

The 64th section of the act relating to the estates of deceased persons reads as follows: “Whenever, in a will, power is given to an executor to sell any property of the testator, no order of the chief justice shall be necessary to authorize the executor to make such sale; and when any particular directions are given by a testator in his will respecting the sale of any property belonging to his estate, the same shall be followed, unless creditors or heirs may thereby be prejudiced in their rights.” Pas. Dig. art. 1324, note 496. But the power here given must be exercised by the executor himself, and cannot be delegated by the administrator with the will annexed. 23 Tex. 569.

An administrator with the will annexed derives his power to sell property from the general law, and not from the will. Pas. Dig. arts. 1269, 1274; 20 Tex. 183.

Where an administrator with the will annexed, in July, 1863, sold a slave in the manner authorized by the will, but without any decree of the court directing such sale, and the purchaser took the slave into his possession, and held him until freedom was consummated, in May, 1865, it was held, that the title did not pass; that the sale was void; and it having become impossible, by a vis major, to return the negro, the plea of failure of consideration was a good bar to the action.

APPEAL from Panola. The case was tried before Hon. M. D. ECTOR, one of the district judges.

Burnell Benton died in Panola county, Texas, having made a last will and testament, in which executors were named, who probated the will, but did not qualify. The appellant was appointed administrator with the will annexed, and gave bond. The will provides that the property of the testator should be sold at his residence on credit, after giving certain notices, and that the probate court should exercise no authority over the estate. The administrator sold the property as directed by the will, without any order of the probate court, and made no report of that sale to that court. Mize, one of the appellees, purchased one of the slaves of that estate, and executed the note to the plaintiff, as administrator, with the other appellees as sureties for the purchase money. On this note suit was brought November, 1866. Mize took the slave into his possession, and kept him from the date of his purchase (14th July, 1863) until slavery was abolished, never having offered to return him to the administrator. The note was for $2,600, dated 14th July, 1863, due at twelve months after date, with ten per cent. interest after maturity.

The defendants plead a failure of consideration; that the note was given for the negro, Jerry, sold by the administrator without the order of the probate court, at a time and place contrary to law; that the sale was never approved by the court, and therefore it was void, and no title passed; that the negro, when sold, was free, having been made so by President Lincoln's proclamation in 1863; that in consequence of this proclamation and the laws of congress, orders, etc., Jerry had asserted his freedom, on the 1st of May, 1865, and had left the possession of the purchaser; wherefore there was no consideration for the note; that the real understanding was, that the note was to be discharged in Confederate notes, which, when the note matured, were only worth $1 for $30; and the answer was framed under the scaling ordinance of 1866. “Dollars” were inserted in the note; but it was plead that Confederate treasury note dollars were intended. These pleas were all artistically framed. They were met by special exceptions, raising every legal point; and by a special replication, that the negro was delivered, and possession kept, and the negro never returned; that he was sold in accordance with the will of his testator, etc. The will authorized the executors to sell in the manner in which the sale was made.

On the trial, the plaintiff proved the note and a mortgage on the negro to secure the payment, as was intended by the will, and also the will, giving the power to the executors to sell, and the appointment of the plaintiff as administrator pro tem. It is proved that the consideration of the note was the slave; that the sale was made alone under the will, without any order of the court; and that the negro was delivered, and remained with Mize until slavery became extinct.

The court in effect instructed the jury to find for the defendants, if they believed that there was no judicial order of sale. The jury found a verdict for the defendants, and from the judgment for costs the plaintiff appealed.

The question was upon the correctness of the instruction.

A. W. De Berry, for the appellant, argued the case upon our statute regulating proceedings in reference to estates, O. & W. Dig. arts. 711, 720, 746, 777, 778, which are the same articles cited in the opinion of the court. He also cited Langley v. Harris, 23 Tex. 546; Ogburn v. Ogburn, 3 Port. 127; Harbin v. Levi, 6 Ala. 399.

William Stedman, for the appellees.

DONLEY, J.

Burrell Benton, by his will, having disposed of his estate, and given particular directions as to the sale and distribution of it, provided that no other action should be had in the court in relation to the settlement of his estate than the probate and registration of his last will and testament, and the return of an inventory of his estate, directed that no bond should be required of his executor. An executor was...