William M. Eastland's Ex'r v. Lester

• Decision Date: 01 January 1855
• Citation: 15 Tex. 98
• Parties: WILLIAM M. EASTLAND'S EX'R v. JAMES S. LESTER.
• Court: Texas Supreme Court

15 Tex. 98

WILLIAM M. EASTLAND'S EX'R

v.JAMES S. LESTER.

Supreme Court of Texas.

1855.

Where an act of the legislature (Hart. Dig. art. 2712) provided that all the volunteers captured at Mier and at Santa Fe by the Mexican forces, should be entitled to receive pay at the rate of twenty-two dollars and fifty cents per month, from the respective times of their mustering into service until one month after the time at which the main bodies of said volunteers were released by the Mexican government, and that it should be the duty of the auditor and comptroller to issue to each of said volunteers, or his heirs or representatives claiming the same, a certificate for the amount to which he was entitled under the provisions of said act, etc., it was held, where the volunteer was dead at the date of the act, that the amount so allowed was not assets subject to the payment of the debts of the deceased, but passed directly to his widow and heirs.

Appeal from Fayette. Application to the county court by the appellee, a creditor of William M. Eastland, deceased, to compel the executor of said Eastland to return an inventory of $2,273, which he had received as executor of said Eastland from the state, under the act of February 9, 1850, for the relief of certain persons formerly prisoners of war in Mexico. (Hart. Dig. p. 819.) Eastland was dead at the passage of the act. The widow of Eastland and her husband intervened in the district court; Eastland left no issue; his brother, who was not a party, resided at Bastrop. The district court decided that the money was assets in the hands of the executor, subject to the payment of debts, and ordered an inventory thereof to be returned. Appeal by the executor.

Sayles & Blanton, for appellants. The object of this act was to confer the bounty of the state upon those who had suffered in her behalf. It was a pure donation from the state, which they had no legal right to demand, however justly they might ask it from the generosity of their government.

The terms used in the statute are descriptive of the persons who were to be the recipients of its benefits; and the persons then in esse, capable of receiving, were entitled to the bounty. It was given to the volunteer, if living, and in case of his death, to his heir or representative. The term representative, in this statute, should receive the construction uniformly given it when used in grants or wills, where it is held to mean the “next of kin.” (Lang v. Blackhall, 7 Ken. 100; 3 Ves. 146, 383, 486.)

Webb & Harcourt, for the appellee. Before noticing the assignment of errors, we contend that the intervenors have not appealed at all. No appeal bond was filed by them, and the appeal taken by the executor cannot cover the judgment of the court upon the petition of intervention.

The county court could have had no jurisdiction of the intervention, and, as a consequence, the district court could not. (Baker v. Chisholm, 3 Tex. 157.)

The act says that all volunteers, etc., “shall be entitled to receive pay.” This word pay annuls all idea of a donation. Webster defines it to be “compensation, recompense, an equivalent given for money due, goods purchased or services performed, salary or wages for services, hire.” And as an example for its proper use, the same author gives: “The merchant receives pay for his goods, the soldier receives pay for his services, but the soldier of the American revolution never received full pay.” (Webster's Unabridged Dic.) And this act not only extends pay for services, but determines at what rate and for what time it shall be estimated. The law goes on to provide that the proper officers shall “issue to each of said volunteers or his heirs, or representatives claiming the same, a certificate for the amount,” etc. We have heretofore, in this case, heard the position assumed that the words “heirs” and “representative,” are used synonymously in this law, to mean the heirs of the volunteers alone, and that if not, the word heirs, being first in position, makes the heirs first in right. In the case of Alexander v. Barfield (6 Tex. 400), your honors decide that in no known judicial sense can the heir or next of kin of a deceased be his representative until administration is committed to him. (Also see Burrill's Law Dic. and all dictionaries, tit. Representative.) The plural, representatives, is used to make it applicable to the plural, volunteers. The word heirs has a perfect meaning within itself; and the legislature would never have used the word representatives to make another word explicit, which by the law has a meaning as well defined as any word used or defined in our law dictionaries.

The legal and moral obligation to pay this debt was in full force, and it only remained for the government to provide the way. It may be said that the Mier expedition was unauthorized, but we answer that the act passed by the government for their relief is a full ratification of the expedition.

F. W. Chandler, also for appellee.

LIPSCOMB, J.

In this case, the question arises, between the heirs of the testator and his creditor, as to who is entitled to receive the money allowed by the government, under the act of the legislature of February 9, 1850, entitled an act for the relief of certain persons formerly prisoners of war in Mexico....