Allen v. Heirs of Clark

.Hemphill, Ch. J. This suit was brought by the heirs of [405] Jonathan Clark, deceased, for land, against Malachi Allen who claims by virtue of purchase at a probate sale of the head-right certificate of the deceased under which the land was surveyed and patented. The order of sale was obtained by the administrator of Clark, deceased, in March, 1844, on his application to the Probate Court of Red River county, in which county letters of administration had been granted, and the only question is as to the validity of this order of sale. We see no ground upon which it can be impeached. The Act of January 16th, 1843, did not inhibit the administrator from applying for an order for the sale of the real property of an estate when necessary for the payment of debts, &c. Nor did it inhibit the Court from granting such order on the application of an administrator. He might have been exempted, perhaps, from liability for failure to procure an order of sale. The creditors and other persons mentioned in the Act were in effect bound to protect their own interests and obtain sales when necessary, but there is nothing in the Act which imports an intent to paralyze the administrator, to defeat the object of his trust, and prevent him if so disposed from faithfully administering and settling the estate, and obtaining on his own motion, the necessary orders for that purpose. But this question has been fully discussed in Alexander v. Maverick, (18 Tex., 179,) and it was there settled that the Statute of 1843, did not prohibit the Probate Court from ordering the sale of the lands of an intestate, on the application of the administration. The Opinion to the contrary, as expressed in Miller v. Miller, (10 Tex., 319) did not receive the sanction of a majority of the Court, they having declined to express a decisive opinion as to the construction of the Act. There is nothing in the fact that the certificate was issued to the heirs of Clark. The mere fact that the certificate was issued to the heirs, [406] does not make it their property in their individual, personal capacity. They hold only as heirs of the deceased, and the certificate was as much the property of the estate of the deceased as if it had been issued to his administrator. It is ordered that the judgment be reversed, and that such judgment be rendered for the defendant as should have been entered by the Court below. Reversed and reformed.