Grant v. McKinney

Citations

• 36 Tex. 62

Syllabus

<p>1. In a suit on an administrator’s bond, brought by the administrator de bonis non against the original administrator and his sureties, it appeared that the original administrator was the surviving partner of the intestate, and that the assets of the estate consisted of the intestate’s interest in the goods of the firm left in the hands of the surviving partner, who was appointed the original administrator, and who, as such, inventoried the assets, hut failed to account for them. His sureties, being defendants in this suit, pleaded that the assets did not come to the hands of their principal as administrator, but as surviving partner, and, if converted at all, were converted by him as surviving partner, and not as administrator ; and further alleged that the partnership had never been settled up. But it was neither alleged nor proved that the assets had been applied to payment of partnership debts. Held, that on this state of case the defendants were liable to the administrator de bonis non for the value of the assets and interest.</p> <p>2. An order of a probate court, removing an administrator, recited that he had grossly neglected his duties, had failed to report sales, or to make any exhibit of the estate, though more than a year had elapsed since his appointment, and that, being a transient person, and his residence unknown, no process could be served on him, and that proof had been made that he eluded service of process. This order was made on the same day as an application for his removal, and it does not appear that any citation was issued for him; but the order of removal had never been reversed or appealed from. The sureties of the administrator thus removed being sued on their bond by the administrator de bonis non, insisted that the order of removal was void, and, consequently, the plaintiff was not legally administrator, nor entitled to maintain this suit. But held, that at the worst the ojder was not void, but only voidable ; and being unreversed, i