Walker v. Abercrombie

• Decision Date: 08 February 1884
• Docket Number: Case No. 1682.
• Parties: B. W. WALKER v. J. MINERVA ABERCROMBIE.
• Court: Texas Supreme Court

61 Tex. 69

B. W. WALKER

v.J. MINERVA ABERCROMBIE.

Case No. 1682.

Supreme Court of Texas.

Feb. 8, 1884.

ERROR from Walker. Tried below before the Hon. John R. Kennard.

The opinion states the case.

Hume & Shepard and McKenney & Leigh, for plaintiff in error, cited: Moore v. Rice, 51 Tex., 289;Howard v. McKenzie, 54 Tex., 183;Lacy v. Williams, 8 Tex., 187;Giddings v. Steele, 28 Tex., 748.

Abercrombie & Randolph, for defendant in error, cited: Green v. Crow, 17 Tex., 184-188;Little v. Birdwell, 27 Tex., 690-91;Reeves v. Petty, 44 Tex., 253, 254;Mabry v. Ward, 50 Tex., 410, 411; Acts 15th Legislature, p. 127, sec. 125; Patton v. Gregory, 21 Tex., 517, 518;Moore v. Morse, 2 Tex., 402;Putnam v. Young, 57 Tex., 464.

STAYTON, ASSOCIATE JUSTICE.

This is practically an action of debt, instituted by Mrs. Abercombie against Benjamin W. Walker, to recover the amount of a judgment rendered in favor of her husband November 16, 1871, with interest thereon.

The petition alleges and the evidence shows that the judgment was community property between Mrs. Abercombie and her husband, who died July 15, 1878, leaving several children, all of whom were of age at the death of their father except one, who became of age before the institution of this suit.

All of the children of Abercrombie conveyed their interest in the judgment against Walker, prior to the institution of this suit, to Mrs. Abercrombie.

It is alleged and proved that Abercrombie died insolvent, leaving no property whatever except the judgment against Walker, and that no administration had been taken out on his estate.

The petition contained statements that, if the entire sum due from Walker were recovered, it would not meet the allowance to which the widow would be entitled in lieu of exempted property, of which none was alleged to exist in kind. It was also alleged that Walker was insolvent, and had been so since the judgment was rendered against him.

The petition ended with the following suggestion, after prayer for judgment: “But should the court deem it more appropriate, she prays for judgment against said defendant for said sum and costs aforesaid, subject to debts, claims and demands of creditors, after the allowance due her as surviving widow and her then minor son as aforesaid, in lieu of exemptions as aforesaid, have been secured to her, and she prays for general relief.”

A judgment was rendered against Walker for amount of judgment, interest thereon and costs of former suit. The judgment concludes as follows: “It is further ordered, adjudged and decreed by the court that this judgment, or the proceeds collected or realized thereon, shall be subject to such of the debts, claims and demands of the creditors of John C. Abercrombie as may be valid and subsisting, and as may be asserted and ought to be enforced by said creditors, after the allowance in lieu of exemptions from forced sale, to which plaintiff may be entitled as the surviving widow of said John C. Abercrombie, deceased, have been secured to her under the law regulating estates of deceased persons, providing that there should be set apart to the surviving widow and minor children of intestate decedent, such property of the estate of such decedent as may be exempt from forced sale, or allowance in lieu thereof, should such exemptions be not found in said estate.”

This judgment does not assume to set aside to the widow and minor child any part of the estate in lieu of exempted property not existing among the property of the deceased, nor does it attempt to adjudicate that they are so entitled; but in so far as the judgment speaks in reference to this matter, it declares, in effect, that Mrs. Abercrombie, if it be collected, shall hold the proceeds of the judgment just as an administrator would hold it, to be disposed of in accordance with the law regulating the matter.

There seems to have been an intention to manifest in the judgment the fact that Mrs. Abercrombie, as against creditors of the estate of her husband, should have, in the fund to be collected through the judgment, no other or greater interest therein than she would have were it collected under a judgment rendered in favor of an administrator of her husband's estate, and by him.

Hence, there arises no question in this case as to the exercise by the district court of jurisdiction which the constitution confers on the county court alone, unless it be exercised by the district court on appeal from the county court, or in some special matter in which original jurisdiction is conferred.

It is urged that Mrs. Abercrombie, as the surviving member of the community, and as assignee of the interest of the children, could not maintain this action; that such an action can be maintained by no other person than the administrator of the estate of J. C. Abercrombie.

It is ordinarily true that the legal representative of a deceased person's estate is the proper person to maintain a suit to recover property of or a debt due to an estate; but that there are exceptions to this rule is well settled, even in cases in which heirs or persons claiming rights derived from and through the deceased are the persons suing. Evans v. Oakley, 2 Tex., 185;Moore v. Morse, 2 Tex., 403;Lacy v. Williams, 8 Tex., 185;McIntyre v. Chappell, 4 Tex., 192;Cochran v. Thompson, 18 Tex., 656;Patton v. Gregory, 21 Tex., 517;Giddings v. Steele, 28 Tex., 748.

The rule is not an unbending one, and has its foundation in the necessity for giving protection to creditors of a deceased person, which in most cases makes it necessary to place the estate and its control in the hands of a legal representative, freed from interference by heirs, legatees or devisees, while such representative is in the lawful discharge of the trust.

This rule does not exist for the benefit of debtors to the estate who are indisposed to pay what they justly owe to any one.

Property vests in the legal representative of an estate only in a qualified manner and to a limited extent for a given purpose, and for all other purposes the title is in the heir from the instant of the death of the intestate.

In this case it appears with reasonable certainty that there were debts against the estate of J. C. Abercrombie, but it is claimed that there is no property subject to their payment; that all the property, if realized, would be consumed in the payment to the widow and minor child of allowances in lieu of exempted property. This may be true, and if so would bring the case within the exceptions recognized in the cases referred to; but the district court ordinarily has no...