In re Bowden's Estate , 33 Tex. 730 ( 1871 )

Walker, J.

The twenty-sixth section of the act prescribing the mode of. proceeding in the district courts in matters of probate reads thus: “ The property reserved from forced sale by the Constitution and laws of this State, or its value, if there be no such property, does not form any part of the estate of a deceased person, when a constituent of the family survives.”

The one hundred and sixth section reads thus: “ The administrator shall enter into bond with one or more sufficient sureties, to be approved by and payable to the clerk, in an amount not less than double the estimated value of the personal property and real estate.”

The estate of T. Y. W. Bowden, after deducting the homestead of the widow, was $1779 11. ' Twice this amount would be $3558 22. The court would have satisfied the law if a bond in this amount had been taken of Mrs. Stockton (late the widow of Bowden, deceased,) and her husband, M. B. Stockton. But it appears that from some cause the court demanded a bond in the sum of $12,000. If this can be called discretion under the one hundred and sixth section of the probate act, we see no reason why, in the full latitude of discretion, a bond for $100,000 might not be demanded, and thereby administration be denied to those, in many cases, to whom the law has given it. Such would be not discretion but oppression. We think it proper to remark that when the law is complied with, it is generally safest to undertake nothing more; and when the penalty of a bond is fixed at double the amount of the damages which could possibly be sustained by its breach, it ought tó be and is in law sufficient.

This case is reversed and remanded to be proceeded in in accordance with this opinion.

Reversed, and remanded.