Tucker v. Brackett , 28 Tex. 336 ( 1866 )

Smith, J.

—The appellee having filed ah inventory and appraisement of the community property of herself and deceased husband in the county court, she thereby rendered herself liable to be sued upon the community debts, for which it was made expressly liable. (O. & W. Dig., Art. 810; Paschal’s Dig., Art. 4646.) And, without any administration or further action in the county court, she had the right to manage, control, and dispose of said community property, real and personal, in such manner as may have seemed best for the estate, and of suing and being sued with regard to the same, in the same manner as during the lifetime of her husband. (O. & W. Dig., Arts. 812, 816; Paschal’s Dig., Arts. 4648, 4652.) The surviving wife, when an inventory and appraisment are filed as aforesaid, is made the surviving partner and representative of the community property, (Jones v. Jones, 15 Tex., 143,) and while she continues to act in that capacity she may be sued for the debts against the community; but as she is proceeded against in a fiduciary capacity, the action being more in the nature of a proceeding in rem than in personam, judgment should be that the amount be made of community estate in her hands. The laws do not expressly authorize the issuance of executions on such judgments; but it is the opinion of the court, that, as the community property is made expressly liable for the debts, (O. & W. Dig., Art. 810,) and suit may be brought against the survivor to enforce their collection, and as there is no administrator to proceed against, the most usual and customary remedy for the collection of debts by execution should be adopted. But if it should appear that the community property is likely to be sacrificed, and in that way the estate rendered insolvent, but which, with proper terms and conditions to the sale, would be saved from such sacrifice, the courts of equity would have ample power to interpose the proper and necessary terms and conditions. (Adriance v. Brooks, 13 Tex., 279.)

We believe the judgment of the 9th day of October, 1858, rendered in favor of the appellant against the appellee, as the survivor of O. B. Brackett, deceased, was properly rendered, to be collected of the community property. It was the only remedy he then had.

But upon the contingencies named in O. & W. Dig., Arts. 813, 814, (Paschal’s Dig., Arts. 4649, 4650,) the county court had authority to grant administration on the estate of O. B. Brackett, deceased, as in other cases provided by statute; and we are of opinion that the moment administration on the estate was opened, then the appellee ceased to represent the estate as the survivor, and could not be further proceeded against by suit or execution as such surviving representative. The whole of the estate then passed legally from her hands as surviving wife, under the control and jurisdiction of the county court, to be disposed of in compliance with the laws governing estates in that court. And notwithstanding administration was granted upon the estate of O. B. Brackett, deceased, after the granting of the injunction in this cause, it was proper at the time it was tried in the District Court to render the judgment perpetuating the injunction against the collection of the debt by execution and sale, and that the same be paid by due course of administration.

There appears to be no controversy about the payment of the $420, as stated in the petition; no new evidence was introduced upon that point, and it, as a ground for the injunction, was settled in a former decision* of this court in this cause, and does not appear now to be insisted upon. (Tucker v. Brackett, 25 Tex. Supp., 119.)

The injunction was perpetuated upon grounds that did not exist at the time it was granted, and for that reason we believe it in accordance with the equitable powers of the court to decree the costs against the appellee, to be paid in due course of administration, which error can be obviated by reforming the judgment here.

Whether the appellant acquired an execution hen upon the lands embraced in the levy, which should have been recognized and established in the judgment to be enforced in the county court in due course of administration, we do not feel ourselves called upon to decide. The appellant has not in his pleadings asked for any such relief, nor does it even appear that the matter was brought to the attention of the court below, whose action alone we deem ourselves called upon to revise, and not to pass upon points upon which he has not acted, either directly or by implication.

It is ordered therefore that the judgment below be reversed, and reformed here to conform to this opinion.

Reversed and Reformed .