Ward's Heirs v. Ward

A. S. Walker, J. The only question in the' case is whether there is a cause of action contained in the pleadings of the plaintiffs. 1. The plaintiffs showed a right to sue. It was alleged that the estate was vacant by the removal of the administrator; that there were no debts owing by the estate; and that they were heirs of the intestate. Upon such state of facts the estate vested in the heirs. 2. The petition, so far as it sought to revise proceedings in the administration had in the probate court, was defective for the reason given in the exceptions urged. To that extent the demurrer was properly sustained. Pas. Dig., 1382, 1383; 50 Tex., 598; 44 Tex., 133, 539 and 573. 3. The breach of the bond alleged, in the most part of the particulars in the allegations relied on as a breach, was one of which creditors, devisees and heirs alone could complain. Johnson v. Hogan, 37 Tex., 80. The bond is for the protection of creditors, devisees and heirs. An administrator de bonis non could not sue except for the assets remaining unadministered, as shown in the administration. The right of the heirs to sue would follow*their right to the possession of the property of the estate. The trust in the administrator created by the proceedings in administration having been executed, the estate being vacant, the property constituting the estate again vested in the heirs without incumbrance; vested in them the right, carried the legal remedies; and the right to call in question all the acts of the trustee which had not been sanctioned by the action and approval of the probate court in the progress of his administration. The bond was for the purpose of enabling those entitled to the estate to have satisfaction for breach of duty, and the right to sue is expressly given to the heirs. Pas. Dig., 1375. 4. That an imperfectly stated cause of action was joined with the suit for breach of the bond (in squandering the [126] assets, etc.) is no ground for demurrer to the cause of action well pleaded. Edgar v. City of Galveston, 46 Tex., 428. Especially is it so when by amendment the former is abandoned. There is no inconsistency in the facts as given under the two causes originally joined in the suit. We are not called on to say whether they were improperly joined. The defect was cured. [Opinion delivered May 31, 1880.] As the case should be reversed, it may be well to suggest that, before another trial, the district court should require the plaintiffs to replead,-—collecting into the amendment all their allegations, omitting, however, all that relate to the attack upon the administration proceedings had in the probate court. The demurrer was improperly sustained, and the judgment below should be reversed. Beversbd and remanded.