Coleman v. Texas Produce Co. , 204 S.W. 382 ( 1918 )

By the statute death suspends the limitation period for a year, unless an administrator or executor has sooner qualified Article 5703, Vernon's Sayles' Stat. And an independent executor, as here, is qualified and competent to act from the time the will appointing him is admitted to probate. Patten v. Cox, 9 Tex. Civ. App. 299, 29 S.W. 183. And the cases cited by appellee are not in conflict with the ruling in the above case. The case of Connellee v. Roberts, 1 Tex. Civ. App. 363, 23 S.W. 187, only decides that it is not essential to the qualification of an independent executor that any oath as such should be taken by him, and an inventory that does not embrace every item of property cannot be collaterally attacked as incomplete. In this same case the court, in speaking of the case of Roberts v. Connellee, 71 Tex. 11, 8 S.W. 626, said:

"The question before the court upon that appeal was not so much the necessity of an inventory to the validity of the sale in question as it was the kind of evidence necessary to prove the return of such inventory. No intimation was made in that opinion of a desire or intention to overrule or call in question the previous cases of Cooper v. Horner62 Tex. 356, and Willis v. Ferguson, 46 Tex. 496, to the effect that the return of an inventory would not be essential to the validity of a sale made by an independent executor in all cases."

Therefore it is believed that the statute of limitation of two years commenced running as to all right of action on the open account in favor of appellee against the executor at the time the probate of the will by the independent executor. And, in view of the undisputed facts, the court should have rendered judgment in favor of the executor on his said plea of limitation of two years.

The judgment is reversed, and a judgment is here rendered in favor of the appellant, with costs of the trial court and of this appeal.