Todd v. Masterson

• Decision Date: 20 May 1884
• Docket Number: Case No. 5020.
• Citation: 61 Tex. 618
• Parties: THOMAS TODD ET AL. v. BRANCH T. MASTERSON ET AL.
• Court: Texas Supreme Court

61 Tex. 618

THOMAS TODD ET AL.

v.BRANCH T. MASTERSON ET AL.

Case No. 5020.

Supreme Court of Texas.

May 20, 1884.

APPEAL from Burnet. Tried below before the Hon. W. A. Blackburn.

The opinion sufficiently states the case.

Fisher & Fisher, for appellant, that the sale of the certificate under order of the probate court cannot be collaterally attacked, cited: Guilford v. Love, 49 Tex., 715;Brockenborough v. Milton, 55 Tex., 493;Pleasants v. Dunkin, 47 Tex., 353.

That the certificate was assets in the hands of the administrator, they cited: Act of 21st December, 1837 (Pasch. Dig., arts. 4059, 4064); Act of 2d March, 1848 (Pasch. Dig., art. 4066); Hubbard v. Horne, 24 Tex., 270;Ames v. Hubby, 49 Tex., 705;Goldsmith v. Herndon, 33 Tex., 706;Rogers v. Kennard, 54 Tex., 30.

S. R. Fisher and R. H. Ward, for appellees, that no jurisdiction was in Galveston county, cited: Act of February 5, 1840 (Hart. Dig., art. 1030); Hearn v. Camp, 18 Tex., 546, 551;Duncan v. Veal, 49 Tex., 611.

That the certificate was not assets in the hands of the administrator, they cited: Arts. 4049, 4064, 4066-4068, 1 Pasch. Dig.; Ames v. Hubby, 49 Tex., 710, distinguishing the case from Goldsmith v. Herndon, 33 Tex., 706, and kindred decisions upon bounty grants. See, too, Rogers v. Kennard, 54 Tex., 35, citing Eastland v. Lester, 15 Tex., 98, commented on in Soye v. Maverick, 18 Tex., 101;McKinney v. Brown, 51 Tex., 97.

STAYTON, ASSOCIATE JUSTICE.

The land in controversy was granted by virtue of the following land certificate:

+----------------------------------------+
                ¦“No. 1229.¦REPUBLIC OF TEXAS.¦640 acres.¦
                +----------------------------------------+
                

Know all men to whom these presents shall come:

That Wm. C. M. Baker, having engaged in the battle of the Alamo with Col. Travis, is entitled to six hundred and forty acres of donation land, in accordance with the act of congress passed December 21, 1837. Said Wm. C. M. Baker, his heirs, executors and administrators, or their assigns, are entitled to hold said land, but it cannot be sold, alienated or mortgaged during the life-time of the party to whom it is granted.

In testimony whereof I have hereunto set my hand, at Austin, this twenty-sixth day of January, 1846.

W. G. COOK,

Secretary of War, etc.”

The appellees claim through conveyance made by the heir of Wm. C. M. Baker, and the appellants claim through a sale made of the land by the administrator of his estate to satisfy debts. This sale was made in 1851, and in the application for sale it appears that Baker was at the fall of the Alamo, and it appears in the original application for letters of administration that he was a citizen soldier who was there killed.

The court below found that the land was not assets in the hands of the administrator of Baker's estate, and on this ground and on another rendered a judgment in favor of the defendants.

If the first proposition be correct, it is unnecessary to examine the other ground on which the court based its judgment.

The certificate on its face shows that it was issued under the act of December 21, 1837 (Pasch. Dig., 4059-4065); so having issued, it necessarily follows that it was a donation from the republic to some one, based on the fact of the death of Wm. C. M. Baker at the fall of the Alamo, and not provided for by any former law.

The sixth section of the act of December 21, 1837, provides that “all persons … who fell at the Alamo under the command of Bowie and Travis shall be entitled,” etc.

By the act of May 24, 1838, the secretary of war was directed to issue land warrants to the legal representatives, in the name of the heirs of all persons embraced in the first section of that act, upon the production of satisfactory testimony that the persons whom they represent were among those who fell in either of the two actions named in the act. Pasch. Dig., 4068.

The decree of November 24, 1835 (Pasch. Dig., 4035), provided for bounty land to all non-commissioned officers and privates in the regular army.

The decree of December 5, 1835 (Pasch. Dig., 4037), provided for bounty land to volunteers, and the sixth section of that decree provided that “if any volunteer or volunteers shall die in the service of Texas, then, and in that case, it shall be and is hereby declared that their bounty land shall descend to their heirs and legal representative or representatives, with all the benefits which the said volunteer could have claimed had he been living.”

The decree of December 11, 1835 (Pasch. Dig., 4040), provided: “There shall be and there is hereby granted to each volunteer in the army of the people of Texas, his heirs or legal representatives, who may have been or may hereafter be killed in battle, or shall come to his death by sickness or any accident whatever in going to or returning from the volunteer army of the people of Texas, one mile square or six hundred and forty acres of land in Texas.”

By joint resolution of November 24, 1836, it was declared that “The provisions of the ordinances granting the lands to volunteers from the United States and elsewhere be so construed as to extend to all who have rendered services as volunteers in the army of the republic of Texas.”

The ordinance of December 11, 1835, would no doubt have received the same construction as is given to it and other ordinances by the joint resolution of November 24, 1836, which probably, taken all together, gave bounty to every soldier in the army of Texas, whether they served the full period for which they enlisted, were killed in battle, or came to death by other cause during the period of enlistment.

Lands received under these several ordinances and decrees were strictly bounties, to which rights vested in the enlisted person during his life, by virtue of an enlistment under a law which gave the promise of the government, which became part of the contract of enlistment. It would seem to follow, unless the law conferring the bounty gave it a different direction, that land so acquired, coming through a right vested at the time of the death of the person for and on account of whose service the bounty was given, would vest in the heir of such person, just as would any other property, subject to the payment of the debts of the ancestor through an administration on his estate.

The certificates which evidenced the rights of persons to land, under the several ordinances and decrees referred to, were termed “bounty warrants,” as were the lands granted termed “bounty lands” (Pasch. Dig., 4050, 4041, 4057, 4058, 4074, 4079, 1155, 1157), and properly so; for the lands were “a premium offered or given to induce men to enlist into the public service.” An extra compensation offered by the government to those persons who should enlist and faithfully discharge the duties of a soldier in the war then pending. Abbott's Dictionary.

The reasons for holding that bounty lands constitute a part of the assets of the estate of a deceased person through whom they come, are just as cogent, in the absence of something in the law through which such lands are obtained showing a contrary intention, as in cases of lands acquired as headrights, in the name of heirs, after the death of the ancestor through whom the right to the land comes.

In the one case, as in the other, the right had an existence during the life of, and in favor of, the ancestor, and therefore the thing realized, even after the death of the ancestor, through that right, must constitute a part of the assets of his estate.

So it has been held in cases where headrights to which an ancestor was entitled were taken out after his death, even in the name of his heirs. Soye v. Maverick, 18 Tex., 101;Allen v. Clark, 21 Tex., 406;Goldsmith v. Herndon, 33 Tex., 707;Hornsby v. Bacon, 20 Tex., 558;Warnell v. Finch, 15 Tex., 165;Marks v. Hill, 46 Tex., 345.

The ordinances and decrees to which we have already referred secured to persons situated as was Wm. C. M. Baker a bounty of at least six hundred and forty acres of land, conditioned only on faithful service until the end of his enlistment; and provided that the death in battle or otherwise, or disability ultimating in a discharge from the service before the expiration of the enlistment of such person, should not divest that right.

This right was the result of contract existing at the time of his death. It needed no statute after his death to give validity to it. It was a right perfected with his death.

Was the act of December 21, 1837, intended to give a right not given by any former law? Was it passed to perfect or in any way evidence a right which, prior to its passage, had any existence whatever?

The act evidently referred to soldiers of the regular or volunteer army who participated in the battle of San Jacinto or were prevented from so doing by the facts stated in the act; to like persons who entered Bexar at the designated time and actually took part in its reduction; to the same class of persons who were in the action of March 19, 1836, under the commands of Colonels Fannin and Ward, and to those who fell at the Alamo under the command of Bowie and Travis.

As before said, the right of this class of persons, unless forfeited for failure in soldierly duty, to a bounty of at least six hundred and forty acres of land, was fixed by laws and contracts in force long prior to the fall of the Alamo; and the sole purpose of the act in question, passed long afterwards, was to confer an additional right on some one for a like quantity of land, based on the sole fact of the death of the soldier, and without reference to any right which the soldier may have had for services...