Houston v. Estate of Mayes

Citations

• 66 Tex. 297
• 17 S.W. 729
• 1886 Tex. LEXIS 508

Syllabus

<p>1. Estates of decedents—Withdrawal from administration—Partition—Distributees—Practice—A majority of the persons entitled to portions of the estate of a decedent filed an application in the county court to withdraw the estate from administration, and asked that the property be delivered to one of their number. The prayer was granted by the county court over the objection of the administrator, who appealed. In the district, court the same judgment was rendered, and an additional'order made that the administrator be discharged, though there was no prayer to that effect. Held:</p> <p>(1) It is not clear from art. 1966, B. S., whether the delivery is to be,made only to such persons as apply for a withdrawal of an estate from administration, or to each of the distributees of the portion to which he is entitled.</p> <p>(2) If the court disposed of the whole estate to the party giving the bond, with the concurrence of the other heirs, and the creditors were secured by the statutory bond and lien, the administrator had no right to complain.</p> <p>(3) If any of the heirs objected to the disposition made of the property, they themselves should have made their objections at the time and in the manner provided by statute.</p> <p>(4) The statute does not seem to contemplate that a partition of the estate shall be made before its withdrawal from administration, unless demanded in writing by some one entitled to a portion of it.</p> <p>(5) The heirs, by failing to object to the delivery of the estate to one of their number did not waive the right to have partition, and could still demand it.</p> <p>(6) On the withdrawal of the estate from the court, it was the duty of the judge to discharge the administrator without a prayer to that effect.</p>