San Roman v. Watson

Bonner, Associate Justice. The first, second and third errors assigned by the plaintiff in error, and the propositions thereunder, may be stated substantially as follows: “ That the court improperly overruled petitioner’s motion to dismiss the appeal from the county court to the district court, because what purported to be an appeal bond is not made payable to the county judge of Cameron county, the words, (county judge,’ as used in said bond, being merely descriptio persones, and that said bond is not made payable to the county judge, or his successors in office,” etc. The fifth and sixth errors assigned by plaintiff in error and his proposition thereunder, are substantially as follows: “The appeal bond in this case, from the county to the district court, is not signed by the principals, or any of them, or by any one for them; it is merely signed by two ■parties who are in no wise connected with the case, who are not considered in the body of the bond as sureties.” The bond given on appeal from the county to the dis [259] trict court, and which was objected to in this case, was under act August 9, 1876, regulating proceedings in the county court pertaining to estates of deceased persons, loth Leg., 93. The bond was payable to H. Klahn, county judge, was conditioned as required by the statute, and in our opinion was a substantial compliance with the same. The fact that the names of the sureties did not appear in the body of the bond, or that the principals did not sign the same, would not, under repeated decisions of this court, render it invalid. Cooke v. Crawford, 1 Tex., 10; Shelton v. Wade, 4 Tex., 150; Lindsay v. Price, 33 Tex., 280; McKellar v. Peck, 39 Tex., 381. The seventh and eighth errors assigned are, that “the court improperly denied and dismissed the application of plaintiff and petitioner herein for the reason given by the court, to wit: c Because no indebtedness of said estate was stated in said application,5 in this: “ It was necessary that there should be an administrator appointed by the courts of probate to close this administration, in the settlement of the accounts of said estate, and the monies due to it, upon a vacancy occurring in the original administration. “And because the record in this cause shows that there were, and now is, remaining unsold, in the state of Texas, land belonging to said estate, which, under the provisions of said will, should have been sold and the proceeds remitted to New York and invested; wherefore the provisions of said will are not fully administered in this state, as said will requires.” The reason given by the court for refusing to grant to F. San Roman letters de bonis non, was, that it did not appear that the estate was indebted at the time when his application was filed. An administration de bonis non is in legal effect the continuance-of the previous administration, and we do [260] not say but that in a proper case such letters could be granted, though the estate might not then be indebted. The applicant, F. San Roman, however, in our opinion, fails to show affirmatively any error in the legal effect of the judgment below, though the reason assigned for it may have been wrong. White v. Downs, 40 Tex., 227. His application was made sixteen years after the will was admitted to probate. He does not show by the testimony but that all the debts of the estate and the legacies in the will, save that given to one of the contestants, Ida Baker Mallory, have been fully paid off. He does not appear to have any interest, personally or otherwise, in the estate. His application for the administration, and which, if granted, would be followed by a sale of the lands, is contested by Mrs. Mallory, the only one, so far as shown by the record, who is now interested in this sale, or for whose benefit there might exist a necessity for the same; and it would seem that if she does not complain a mere stranger should not. Besides, by a former judgment of the court, still in force and not appealed from, the possession of the property was given to her co-contestant, Watson, for her benefit. The ninth, tenth and eleventh errors assigned, being all the others relied upon which have not been virtually disposed of, are, that “ the court improperly entertained at all the objections of the contestants, A. H. Watson et als., because, under the laws of the state of Texas, they had no legal status in the courts of this state, because they were not ‘parties interested,’ in this: “A. H. Watson’s appointment as trustee of the said estate by the courts of the state of Hew York, of itself, conferred upon the said Watson no authority to appear as such trustee, or in any way for said estate, in the courts of the state of Texas. “Because by the very terms of said will the Hew York trustee of this said estate was not authorized to, and [261] could not, take possession of any estate in the state of Texas, but only of money remitted to him by the executor here. “The said Ida Baker Mallory is not residuary legatee by the terms of said will, but is only entitled to a life estate in the monied interest accruing from said investments as the Hew York trustee of said estate may make. And she is not, therefore, entitled to the present or future possession of said estate.” Under the facts presented in the record, it is sufficient to say, in answer to the above, that by the former judgment of the court referred to as being still in force and not appealed from, the possession of the property was decreed to the trustee Watson for the benefit of Mrs. Mallory. This was such a recognition of her right to act here, as would be held on a collateral attack in a contest of this character, to constitute him such interested, party as could contest an unnecessary grant of administration. Beside, Mrs.' Mallory, who has a direct interest in the proceeds of the sale of this land, was herself a party to both that and the present proceedings. Judgment affirmed. Affirmed. [Opinion delivered January 22, 1880.]