Webster v. Willis

• Decision Date: 14 March 1882
• Docket Number: Case No. 569.
• Citation: 56 Tex. 468
• Parties: FREDERICK L. AND ISABELLA WEBSTER v. EMMA C. WILLIS ET AL.
• Court: Texas Supreme Court

56 Tex. 468

FREDERICK L. AND ISABELLA WEBSTER

v.EMMA C. WILLIS ET AL.

Case No. 569.

Supreme Court of Texas.

Mar. 14, 1882.

APPEAL from Polk. Tried below before the Hon. H. C. Pedigo.

R. M. Franklin, for appellants.

James E. Hill, for appellees.

WALKER, P. J. COM. APP.

This was a suit brought to the June term of the district court in 1874 for Polk county by Emma C. Willis, the defendant in error, who sues the unknown heirs of Emily Sanderson, deceased, alleging that she is the legal holder of a note for $123.50, bearing interest at ten per cent., given by the said Emily Sanderson to D. Willis, and payable to him or order. That Emma Sanderson died leaving real estate in Polk county, which vested in her said heirs, and that said debt is a statutory lien on the land. Said note was dated June 30, 1864, payable to D. Willis or order one day after date, bearing said interest of ten per cent. from date until paid.

The petition alleges that plaintiff is the legal owner and holder of the note sued on.

The petition alleges no fact showing any special lien upon said land, but prays that all the property that said Emily Sanderson died seized and possessed of be subjected to the plaintiff's demand, and that plaintiff's lien on all of said Emily Sanderson's property, which has descended to and vested in defendants, be foreclosed, sold, and the proceeds applied to the plaintiff's demand, and cost of suit. Attached to the petition was the plaintiff's affidavit for publication of citation for the unknown heirs of Emily Sanderson; publication was made and served according to article 5460, Pasch. Dig., which service the defendants moved to quash for insufficiency, which motion was overruled.

The plaintiff filed several amended petitions, in consequence of the demurrers of defendants to the plaintiff's pleadings having been sustained by the court. Finally, to the amended petition last filed by the plaintiffs, the demurrers of the defendants seem not to have been presented, and the cause proceeded to trial. The amendments filed by the plaintiff had made as parties plaintiff the heirs of D. Willis, deceased, and specified the land referred to in the original petition as a certain tract of forty acres in Polk county, conveyed by deed to Mrs. Sanderson by R. S. Williamson in 1856. The amendments alleged that D. Willis, their (the plaintiffs') intestate, died in Polk county on the ____ day of ____, A. D. 18--; that plaintiffs are his only heirs at law; that there has never been any administration, nor need for any, upon his estate.

Plaintiffs also alleged that there has been no administration upon the estate of Mrs. Emily Sanderson, deceased; that at the time of said Emily's death her estate was solvent and there were no debts against it except the claim here sued upon.

By amendment filed in June, 1875, the plaintiffs allege that more than four years have elapsed since the death of D. Willis next before the filing of this suit; that there are no debts against his estate; that it is solvent and free of debt; that the claim here sued upon is all the personal property belonging to D. Willis, deceased, and that it would not be subject to administration, if one should be opened, because there is no other personal or real property belonging to it from which any allowance contemplated bylaw could be made; and plaintiffs have no other property in their own right to meet such demand. Plaintiffs alleged that no allowance for their support or for their homestead, or for such exempted property as is by statute allowed them, has ever been allowed them from the estate of D. Willis, deceased; and that they have no other, or separate property, than the property of said estate.

Plaintiffs allege further that this suit was instituted to prevent the bar of the statute of limitations against this claim, and under a bond for the sum of $500 to secure creditors, if any existed, against the estate of D. Willis, in the faithful payment to them of such sum as may be received by these plaintiffs on account of the claim there sued upon. By a subsequent amendment filed October 7, 1875, plaintiffs alleged that Emily Sanderson died more than four years before the filing of this suit; that plaintiffs had made diligent search to ascertain the county in which Emily Sanderson had died, before commencing this suit, but were unable to do so, and were thereby debarred from obtaining administration upon her estate; and that the defendants, who have filed pleadings in this cause, are the only heirs at law.

The defendants appeal on the refusal of the court to grant them a new trial, and assign numerous grounds of error.

The thirteenth cause for error assigned is “that the judgment of the court is not warranted by the law or the verdict of the jury;” and it is assigned as error “that the court erred in overruling the motion of the defendants for a new trial.”

These grounds of error are well taken. The plaintiffs, in instituting this suit, have done so relying upon certain facts alleged by them, which, if true, might withdraw it from the operation of the general rule of law prohibiting them from bringing this suit in their capacity as heirs, and of enforcing the same against the heirs of another estate, instead of seeking to do so through the ordinary mode of administration of the estate of the deceased debtor. See Patterson v. Allen, 50 Tex., 24, and authorities there cited; and see McCampbell v. Henderson, Id., 610.

The right of action itself, in order to be maintained in behalf of the plaintiffs and against the defendants, required the support by proof of the exceptional facts stated in the petition and amended petitions of the plaintiffs, which warranted a judgment against the heirs of Mrs. Emily Sanderson.

This proceeding is not based upon any specific lien upon the land which was decreed to be sold; the cause of action, if one might be made, under the facts which existed when the suit was brought, rested upon a supposed cause of action in personam against the heirs of Mrs. Sanderson, by reason of an alleged acquisition by them of assets of her estate to the extent or value of which they as such heirs would be liable to creditors of their ancestors. See The State v. Lewellyn, 25 Tex., 797;Yancey v. Batte, 48 Tex., 59;18 Tex., 749;15 Tex., 399;14 Tex., 607. The statement of facts shows that Mrs. Sanderson removed away from Polk county, where she lived at the date of the note, June 30, 1864; that she left near about that time; that she had but two children, a son and a daughter. On the trial it was proved that she is dead, but no intimation is afforded through the evidence as to when or where she had died, nor where she resided or lived, or was to be found at any time after her removal from Polk county; nor whether administration had been had upon her estate, or whether administration was necessary to have been had thereon; nor was there any further evidence concerning her or her affairs, or of any effort made by the plaintiffs to ascertain such facts, or to obtain administration upon her estate.

The death of her son, Adolphus Sanderson, it was proved, occurred in 1863, whilst his mother still lived in Polk county. Whether he died leaving heirs does not appear. The daughter, Isabella Webster, appeared and answered. The plaintiffs proved the death of their ancestor, but did not establish where or when he died; and in respect to the affairs of his estate, or the administration thereof, whether there was then, or had been, administration or not, or whether administration had been necessary, or then was necessary; or indeed, as to any fact...