Gunter v. Fox

Bonner, Associate Justice. The parties have made an agreement, under rule 59, as to the points in issue, which are purely questions of law. There is but one ground of error assigned, to wit: “The court erred in giving judgment upon the facts for the defendant.” The agreement made presents two issues of law, viz.: 1. Did Smithers, as administrator of Glasscock, have authority to sue for the land, and does the judgment against him bind the heirs of Glasscock ? 2. Could Smithers, as administrator, admit the right of defendants Hollingsworth and Armstrong, and is the judgment rendered upon the agreement void ? 1st. As early as the first volume of our reports, it was held, that the rule of the common law, that the personalty shall go to the legal representatives and the realty to the heirs at law, never had an existence with us; that the reason of this rule, which can be traced to the feudal ages, founded upon the policy of retaining real property in the families of the aristocracy to give them greater influence, did not apply to our [388] form of government; that this common-law distinction was unknown to the modification of the civil law which prevailed in Texas, and that under the probate act of 1840 the administrator was bound by his oath to administer both the personal and the real estate. (Thompson v. Duncan, 1 Tex., 488; Howard v. Republic, 2 Tex., 312; Graham v. Vining, 2 Tex., 433.) In the subsequent case of Guilford v. Love, 49 Tex., 733, it is said: “ It was decided at an early day, from the general authority intrusted to an administrator by the probate laws, that he could, without the heirs being joined with him, bring and defend suits for land to protect the interests of the estate.” In the case of Barrett v. Barrett, 31 Tex., 344, the administrator was the defendant, and the first three above-named cases, which had then been decided, seem to have been overlooked. So much of that opinion which holds that it was impossible for the court to adjudicate upon the title without making the heirs at law of the intestate, upon whom the descent had been cast, parties, when applied, at least, to a suit in which the administrator is the plaintiff, seems to be in conflict with the above and, we think, better-considered cases. In harmony with these cases, section 112 of the probate act of 1848, (Paschal’s Dig., art. 1373,) gave to the executor and administrator the right to the possession of all the estate, subject to the payment of debts, the residuum to go to the heirs. It was thereby further made their duty to recover this possession, which, as a necessary incident, carried with it the right to sue therefor. The decree of the District Court of Busk county read in evidence, and to which objection was made, was rendered in November, 1857, when this act was in force. In cases of willful neglect, refusal of duty, or fraudulent combination on the part of the executor or administrator, then the heirs had the right to sue to protect their interests; [389] but these were exceptions to the general rule. (Moore v. Morse, 2 Tex., 402; Patton v. Gregory, 21 Tex., 513.) The construction given to the previous acts was changed by the express provisions of the probate act of 1870, which required that the heirs should be made parties when the title to land was affected by the recovery in the suit. (Paschal’s Dig., arts. 5614, 5697-5699, 5000, as amended and repealed by the act of the 13th Leg., 112, 117.) In view of the generally-received construction given to our probate laws, as shown by the above decisions, the decree of the District Court of Busk was binding on the heirs of James E. Glasscock, though not made parties thereto. It may be further added, that section 44 of the District Court act of 1846, (Paschal’s Dig., art. 1447,) provides that suits for the title or possession of lands may be instituted by executors, administrators, or guardians, and judgments shall be as conclusive as if rendered in favor of their testator or intestate. 2d. The District Court of Busk county had jurisdiction of the subject-matter of that suit, and the proper and necessary parties were before the court. If, therefore, there was any error in the action of that court in admitting as evidence the agreement of the administrator, Ben Smithers, this was but an irregularity, which could be corrected only by direct proceedings on appeal or error, and could not be made available by the vendees of the heirs in this collateral action. We are of opinion, then, that there was error in the case now before the court, in not rendering judgment for the plaintiffs; and the cause having been submitted upon an agreed statement of facts, it is ordered that the judgment of the court below be reversed, and that judgment final be now entered in this court for the appellants, Gunter and Munson; which is accordingly .done. Beversed and rendered.