Rogers v. Reward

Citations

• 54 Tex. 30

Syllabus

<p>1. Administration.—The provisions of the statute (Pasoh. Dig., art. 1400) prohibiting administration upon the estates of members of the Georgia Battalion and other volunteers from foreign countries, to any other than the next of kin, did not apply to administration on the estates of those who fell in 1836, who at the time of their decease were citizens of Texas.</p> <p>3. Jurisdiction.— The action of the probate court having jurisdiction over the subject matter, in granting letters of administration, cannot be collaterally attacked.</p> <p>3. Bounty warrant.—Land covered by a bounty warrant issued in 1839 by the secretary of war of the republic of Texas, to the heirs of one who fell at the storming of the-Alamo, approved by the commissioner of claims, on which patent issued, became assets in the hands of an administrator. In this respect it differs from a pure donation made by the government to the heirs.</p> <p>4. Practice.—When an instrument of writing is upon its face so ambiguous as to forbid the court as a matter of law to declare its legal effect, its construction should be left to the jury as a matter of fact.</p> <p>5. Fact oases.— See statement of case for an instrument described, held to be a deed, and not a will.</p> <p>6. Burden of prooe.—When the true meaning of an instrument of writing is from the words in which it is written ambiguous, the burthen of proof is upon him who claims a benefit under a particular construction of it, to establish its correctness.</p> <p>7. Administration.— The general rule is, that while administration is pending on an estate, a suit for the recovery of the property of the estate should be brought by the administrator. To this rule the following exceptions exist, viz.: 1. When the administrator cannot or will not act for the protection of those beneficially interested. 3. When land adversely possessed by those claiming under the administrator, through deeds made in his individual and representative capacity, is sued for b