Lawson v. Kelley

1. Administrator—Suits for Land.—It has been the settled rule of our Supreme Court to construe the probate laws of this State existing up to 1870 as conferring by its general effect the right on the administrator to bring and defend all suits concerning the property of the estate. 2. Same—Cases Discussed.—Thompson v. Duncan, 1 Texas, 487; Howard, Administrator, v. The Republic, 2 Texas, 312; Graham v. Vining, Id., 439; Ottenhouse v. Burleson, 11 Texas, 87; Gunter v. Fox, 51 Texas, 386; Boggess v. Brownson, 59 Texas, 420, discussed and adhered to. 3. Case in Judgment.—Suit hy holder of title under heirs; defense, a decree in a suit in District Court rendered in 1868, the administrator being party; the heirs were not parties. Held, that the decree against the administrator divested title from the heirs. 4. Administration of Community Property. — The husband died leaving a widow. Administration was had in lifetime of the widow. Held, that her subsequent death did not divest the administration of the husband of jurisdiction over the community property.

This is an action in trespass to try title for an undivided half of a section of land. Answer, not guilty. The evidence shows the plaintiff claimed an undivided half of the land through conveyance of the heirs of Jonathan S. and Cynthia Brown, his wife, both deceased. Plaintiff admitted that defendant owns the other undivided half through sale made by the administrator of Jonathan S. Brown, deceased. The defendant under the evidence • claims all the land under a decree of a District Court against the administrator of Jonathan S. Brown, deceased. The decree and papers in that case show that the heirs of Jonathan S. and Cynthia Brown were not parties to the decree. The evidence shows plaintiff’s title to be: 1. Patent to Southern Pacific Railway Company. 2. Deed of assignment from Southern Pacific Railway Company to Pope, Hall & Scott. 3. Deed from Pope, Hall & Scott to Jonathan S. Brown. 4. Deed of heirs of Jonathan S. and Cynthia Brown, his wife, both deceased, and mesne conveyances to plaintiff for an undivided half of the land. The evidence shows defendant’s title is: 1, 2, and 3. Links of the title as given by plaintiff. 4. Deed from administrator of Jonathan S. Brown and mesne conveyances to defendant for an undivided half of the land. 5. A decree for the whole of the land by District Court of Harrison County, on July 27,1868, in a suit for title and partition by James E. Brown v. Wm. Umdenstock, administrator of Jonathan S. Brown, deceased, the file of court papers in the suit being put in evidence with the decree. 6. Mesne conveyances from and under said decree to defendants. Jonathan S. Brown died, and administration was opened on his estate before the death of his wife Cynthia. The petition of James E. Brown in the suit in which the decree above mentioned was rendered alleged that the land was the partnership property of the firm of J. E. & J. S. Brown, and that petitioner was a member of the firm and entitled to half of the land. He prayed for partition, and offered to pay one-half of the debts of the estate of Jonathan S. Brown, deceased. The land involved in the suit was thirty-two sections granted by the State to the Southern Pacific Bailway Company. Four hundred sections had been conveyed by the company to Pope, Hall & Scott, as trustees, for the sole use and benefit of a number of creditors, whose names and the amounts due each were in a schedule attached to the deed, and in proportion to the amounts due each of them. On the schedule of beneficiary creditors appeared, “J. E. & J. S. Brown 42,406.36.” Said Pope, Hall & Scott conveyed thirty-two of said 400 sections of the land conveyed to them to J. S. Brown, reciting in the deed the conveyance to them by the Southern Pacific Bailway Company, and that it was “in trust for the benefit of certain persons named in schedule A attached to said deed, among whom J. E. & J. S. Brown are parties named and interested therein; and whereas, we the said trustees have received a large amount of said lands, for which patents have been issued by the said State of Texas, which patents have been distributed by lot among the various parties interested therein under the deed aforesaid; and whereas, in said distribution the following among other patents fell to the lot of the said J. E. & J. S. Brown, who have instructed us by their written order to execute a deed of conveyance to Jonathan S. Brown to the following sections of said land,” etc. The administrator agreed in writing that James E. Brown should have a decree for half of the land, and on this agreement the court partitioned and gave plaintiff sixteen sections thereof; and the decree recited that plaintiff should pay one-half of the firm debts. Administration on estate of Jonathan S. Brown was first granted his widow. She died, and one Sophia Jilson was appointed administratrix de bonis non, and was removed, and William TJmdenstock appointed administrator de bonis non. The plaintiff excepted to the introduction in evidence of the decree and file papers therewith; in substance, because irrelevant and incompetent; because they show that the administrator was sole defendant, and the evidence shows the children-, minors, of Jonathan S. and Cynthia Brown, his wife, both deceased, were not parties; and the decree in no way affected their title as heirs, or the title of plaintiff, who claims by mesne conveyances under said heirs, and said decree is a nullity as to plaintiff. The court, holding that the decree passed title to the land as against the heirs, accordingly instructed a verdict for defendant. Appellant has assigned errors as follows: 1. The court erred in overruling the plaintiff’s exception to the admissibility and competency in evidence of the decree from the District Court of Harrison County, Texas, in favor of J. E. Brown against the administrator of Jonathan S. Brown. The legal title to the land—the undivided one-half involved in suit—was in plaintiff by regular chain of deeds under and through the heirs of J. S. Brown and Cynthia, his wife; and as to plaintiff, the said decree of the District Court was a nullity, because it was a decree for land and the title thereto and of partition in favor of a plaintiff who had no written evidence of any title or claim to title; and the decree was rendered on an agreement thereto by the administrator of the estate of J. S. Brown, who was the sole defendant; and the heirs of J. S. Brown and Cynthia, his wife, both then deceased, were minors, and not parties to the suit, and the legal title then in said heirs, by descent, is held by plaintiff unaffected by said decree. 2. The court erred in charging the jury to find for the defendant; said charge, in connection with the evidence, being in effect that the decree of the District Court of Harrison County in cause Ho. 5055 passed the title of the land as against the heirs of J. S. Brown and his wife, both then deceased, when said heirs were not parties to the suit, and the sole defendant was the administrator of the estate of J. S. Brown; and the plaintiff in said suit had shown neither title nor any written evidence of title or for conveyance of title, and the decree was as by consent; the administrator, the sole defendant, and said decree and the file in the cause so show. 3. The court erred in admitting the decree in cause Ho. 5055, of the District Court of Harrison County, and in charging the jury .to find for defendant, because there was no administration on the estate of Cynthia Brown, and the lands decreed were community property of J. S. Brown and herself, and her heirs were not parties to the decree. [This statement accompanied the opinion.]