Dunson v. Payne

Ireland, Associate Justice. The demurrer to plaintiffs’ petition should have been sustained. The petition is clearly an attempt to review the final account of defendant, as administrator, and his discharge from the admistration by the Probate Court. The final account was rendered in 1865, and defendant was then discharged from the administration and his account approved, after presentation of vouchers, as shown by the judgment of the Probate Court. The present law went into operation the 15th of August, 1870, and this suit was filed 16th September, 1872. Article 5792, Paschal’s Dig., requires such suits to be [543] brought in two years. This objection could be raised by demurrer. (Alford v. Cochrane, 7 Tex., 487.) As a suit under the probate law of 1848 it was defective in not having attached a copy of the Probate Court proceedings sought to be reviewed. We do not -hold that it would not be sufficient, especially on general demurrer, if the petition set out in substance all the matters sought to be corrected, but that is not done in this case. It is only inferentially shown in what capacity the plaintiffs sue. It is not shown or alleged that the original administratrix had even resigned or been discharged. She could have brought suit or taken steps to have had the account of defendant corrected at any time. The charge asked by the plaintiffs was properly refused. The general proposition is correctly asserted, that an administrator cannot create a debt against the estate, but if it is meant to be asserted that where an administrator pays out money in cases when the law allows him to do so, and that he cannot thereafter retain ■ money that may come to his hands to reimburse himself, the proposition cannot be admitted. There is nothing in the evidence to warrant the court in giving the charge embraced in the second clause of the charge'requested by plaintiffs, and it was not error to refuse it. This court has often announced the rule, that to assign the charge of the court as error, in general terms, is too general and indefinite to be noticed. If the charge is complained of, the precise error must be pointed out. (Johnson v. Alexander, 14 Tex., 386 ; Elliot v. Mitchell, 28 Tex., 112.) The evidence appears to support the verdict, and we see no error in the record for which the judgment ought to be reversed, and it is therefore affirmed. Affirmed.