Portis v. Cummings , 14 Tex. 139 ( 1855 )

Wheeler, J.

It appears that the estate had been administered, by the sale of the personalty, and the payment of the debts; and the administration nearly, if not quite completed in February, 1841. Nothing indeed appears to have been necessary to complete the administration, but a final settlement and discharge of the administratrix. Though such settlement and discharge are not shown, yet upon the authority of Murphy v. Menard, lately decided (supra) and other decisions there referred to, in the absence of anything appearing to the contrary, it must beheld the legal presumption, that the administration had been closed, and the administratrix finally discharged, before she was called by the appellee to account, as administratrix, in the Probate Court, in November, 1848, nearly eight years after her last official act in the matter of the succession. Prima facie, the presumption must be, that her official connection with the succession, in the character of administratrix, had been determined before that time ; and if so, the Probate Court had not jurisdiction of the case, and the party must have sought his remedy in the District Court. (Ingram v. Maynard, 6 Tex. R. 130.) If the administration had not been closed, and the administratrix was still acting in that capacity, the fact ought to have been shown to counteract the presumption arising from the circumstances of the case, and the lapse of time ; and the burden of showing the fact to be so, was with the appellee ; for the legal presumption to the contrary, and of the consequent want of jurisdiction in the Probate Court, was with the appellants, who were not required to show what the law will presume. The judgment, therefore, appearing to have been rendered by the Probate Court in a case of which that Court had not jurisdiction, must be reversed, and the cause remanded, in order that if the facts necessary to give the Court jurisdiction, did exist, the party asserting the jurisdiction of the Court, may have the opportunity afforded of mating it appear. The judgment is reversed and the cause remanded.

March 5th, 1855.

A majority of the Court being of opinion that the case be not remanded, but dismissed from the Probate Court, the judgment rendered upon a former day of the Term, remanding the case, is accordingly set aside and the cause dismissed.

March 7th, 1855.

Reversed and dismissed.