Batchelor v. Douglas , 31 Tex. 182 ( 1868 )


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  • Morrill, O. J.

    — On the 5th December, 1865, W. B. Long, as administrator of the estate of William Kennedy, de*183ceased, instituted suit against defendants, founded on a note of defendants, dated 31st December, 1862, calling for $1,000, payable to G-. M. & W. H. Kennedy, executors of William Kennedy, deceased, or bearer, due at twelve months.

    Defendants answered generally, and there does not appear to be anything further done until 4th Kovember, 1867, when plaintiffs, one of whom is and was one of the executors named in the note, as such, and as payee of the same, with her husband, as such, filed their petition in the office of the clerk, claiming, as the sole surviving executor, the ownership of the note, and requesting judgment on the same.

    At the first term of the court succeeding, the plaintiff, Long, filed in the court a statement, to the effect that he was not the legal representative of Kennedy, deceased, and that the note belonged to the intervenors in their executive capacity, and requested that the intervenors might be substituted in his place.

    Whereupon the court ordered the suit to be dismissed, both as to original plaintiff, Long, and the intervenors.

    It will be seen that the suit, as first brought, was at the instance and in the name of the legal representative of Kennedy, and claiming a judgment for the estate, and when the intervenors filed their petition as executors of the estate, and one of whom was the payee of the note, as executor of the estate, it was, to all intents and purposes, the same plaintiff, so far as the interests of defendants were concerned.

    There was no necessity for time to change or alter, in any way or manner, his defense, especially after the first plaintiff had filed among the records in the case his assignment of the cause to plaintiffs. The note was payable to the estate of Kennedy, and none others but the legal representatives of the estate pretended to claim the ownership of the note.

    *184The statute (Paschal’s Dig., Art. 1275) requires that when an executor shall qualify after an administrator has been appointed, the administration shall be revoked; but all acts done by the administrator previous to the qualification of the executor shall be valid.

    The defendants have not denied the capacity of either of the plaintiffs to sue.

    We are at a loss to find a sufficient reason for the judgment of the court dismissing the cause. The judgment is reversed, and cause

    Remanded.

Document Info

Citation Numbers: 31 Tex. 182

Judges: Morrill

Filed Date: 4/15/1868

Precedential Status: Precedential

Modified Date: 9/2/2021