Hefflefinger v. George

Wheeler, J. The order of the Probate Court, of the 30th of May, 1848, does not profess to be a final disposition of the subject matter ; and it may well admit of question, whether, under the provision of the Act of 1846, (Hart. Dig. Art. 1098,) the party aggrieved was bound to appeal, until there was a final action of the Court upon that subject matter. We think it, at least, clear that, as the final action of the Court, in the settlement of the account of the defendant, touching his actings and doings in the matter of the administration, was not taken until the 30th of November, 1849, when the whole subject of his administration came under review, and received the final action and approval of the Probate Court, this proceeding was properly instituted and rightly maintained, under the provision of the Act of 1848, (Hart. Dig. Art. 1230,) then in force. We are of opinion, therefore, that the right of the plaintiff was not lost by her failure to appeal from the order of 30th of May, 1848. (See Hagerty v. Scott, 10 Tex. R. 525; 11 Tex. R. 677.) The original petition, in which the widow of the intestate was plaintiff, was filed within two years from the final action of the Court upon the matters, in respect to which, it is sought to have its judgment revised and corrected; and was, therefore, in time. The plaintiff in this petition, comes within the description of persons, on whom the right to institute this proceeding is conferred by the Statute, by the expression, “ any one interested in the estate.” And where it is provided, that any one interested in the estate, may have any account of the administrator revised and corrected, we do not understand that it is intended, that all persons so interested must join in the proceeding to be instituted for that purpose. We do not think the right of action, conferred by the words “ any one interested [582] in the estate,” can be construed to mean a right of action conferred, only in case all persons interested in the estate shall see proper to join in bringing the action. Whether all persons who may appear to be interested in the subject matter, should be joined, either as plaintiffs or defendants, is not the question we are now considering. That would, perhaps, be proper; but we do not think it indispensable to the right of those who may see proper to take action in the matter, that all who may be interested in having the action of the Court revised, should join as plaintiffs. We are of opinion, therefore, that the action might well be maintained by the widow, in this case, without joining the children. The recovery would doubtless enure to their benefit. And there are many cases where suit may be brought by the trustee or person having the legal right or title, without naming the beneficiary. There was, therefore, no necessity, we think, to join the children as plaintiffs in the action. Though proper, we do not think it was indispensable. But the introduction of the names of the children into the amended petition did not change the issues or the proofs ; or in any manner affect the rights, or the extent of the liability of the defendant in the suit. It did not render him liable to have a judgment recovered against him for any greater or different amount, nor could their omission have subjected him to a second suit for the same. He has been in no way prejudiced by the character in which the plaintiffs are presented upon record ; and whether, if suit had not been previously instituted, they would have been precluded from suing at the time of filing the amended petition or not, or whether they were rightly joined or not, is immaterial; as, in our opinion, the suit might have been well maintained by the original plaintiff. We are of opinion that there is, therefore, no error in the judgment, and that it be affirmed. Judgment affirmed.