
    Mrs. A. Burks v. T. A. Bennett.
    (Case No. 1674.)
    1. Disqualification of judge.— One who holds approved claims against an estate has such a direct pecuniary interest in the administration that he is disqualified, as a county judge, from allowing or approving claims against the estate, or directing any proceeding therein from the appointment of an administrator until his claim is paid; andrthis, without reference to whether his approved claim is great or small. All orders made by such a creditor, sitting as a county judge, affecting the administration of the estate, are covam nonjadiee and void.
    
      3. Claims against the estate — Administration.— When a claim has been indorsed as rejected by the administratrix of the estate, the erasure of her signature to the indorsement rejecting the claim, more than three months thereafter, does not reinstate it. It is then barred by limitation as a valid claim against the estate. R. S., 2038.
    3. Same.— A judgment vacating orders directing a sale of lands of an estate, and the confirmation of sale, cannot affect a purchaser under the order who is not made a party to the proceeding attempting to vacate it.
    Appeal from Maverick. Tried below before the Hon. Thos. M. Paschal.
    This suit grew out of a probate proceeding in the district court, in the estate of J. M. and E. A. Ramirez, deceased. A part of the proceeding will be found reported in Burks v. Bennett, 55 Tex., 237. After the administration was transferred to the district court, Mrs. Burks, as administratrix, presented an account of the.administration to the court, which was contested by Mrs. Bennett as heir. Several of the items were objected to as credits upon the ground that John S. Sproull, who as county judge had approved the claims for the payment of which the credits were sought, was disqualified; also, that the order of sale, and confirmation thereof, were made by him. Another claim was contested upon the grounds shown in the opinion.
    The court sustained these objections and rendered judgment accordingly.
    
      N. O. Green and L. N. Walthall, for appellant.
    No briefs for appellee on file.
   Watts, J. Com. App.

This is a proceeding in the district court in the administration of the estate of Ramirez and his wife, both deceased. The administration had been transferred to the district court from the county court of Maverick county, on account of the disqualification of the county judge. The proceeding resulting in the transfer of the administration is reported in 55 Tex., 237. There two grounds of disqualification of the county judge were asserted and relied on: the first, that he was a creditor of the estate; and the other, that he had qualified as temporary administrator prior to his election as county judge. Upon the last ground the supreme court held that, as the question was thus presented by the record, he was disqualified, but declined to express any opinion as to whether the fact that the judge held small claims against the estate would or not disqualify him. Under that decision the administration has been conducted in the district court, since that time. This appeal is from the action of that court upon an account of the administratrix, Mrs. Burks, the court below having disapproved and disallowed several items of account as well as a sale of the lands of the estate, on the ground that the county judge, John S. Sproull, who approved the claims and ordered the sale, was disqualified. Upon the contest in the court below it was made to appear that he had never been appointed, nor had he ever qualified as temporary administrator of the estate. Hence that cannot be considered as ground of disqualification of the county judge, in the matters now before the court.

But it is shown by the record that at the time of qualifying as county judge he was, and still is, a creditor of the estate, holding two small claims against it, which had been allowed by the administratrix and approved by his predecessor in office.

Therefore, the important question now before the court is as to whether that fact disqualified J udge Sproull from making orders, approving claims, and directing sales of property in that administration.

Our constitution declares that “No judge shall sit in any case wherein he may be interested.” This declaration rests upon a just and obvious principle. Its enforcement is essentially necessary in protecting the citizen against injustice and wrong. The impartiality which it requires of a judge is incompatible with his having a pecuniary interest in the subject-matter of the litigation over which he presides. The extent of the interest is immaterial; whether it be large or small does not affect the principle. If the judge has a pecuniary interest in the subject-matter of the litigation, he is disqualified and cannot sit in the cause. This principle so forcibly commends itself to our sense of justice that here, as in other states, it has been incorporated in and made part of the organic law. And our superior courts have at all times vigorously enforced that provision, as well as those kindred provisions which relate to the disqualification of judges. Garrett v. Gaines, 6 Tex., 435; Chambers v. Hodges, 23 Tex., 112; Hodde v. Susan, 58 Tex., 389; Slavin v. Wheeler, 58 Tex., 23; Gains v. Barr, 60 Tex., 676.

One who owns and holds approved claims against an estate is pecuniarily interested in it; is interested in every order approving or disapproving claims against the same; in every order directing the sale of property of the estate. The creditor, in short, is pecuniarily interested in every proceeding in the administration, from the appointment of an administrator until his claim is paid.

This is such a direct pecuniary interest as would incapacitate a judge who is a creditor of the estate from making any orders whatever in the administration thereof.

In Cottle, Appellant, 5 Pick., 483, the supreme court of Massachusetts held that being a creditor of the estate disqualified the judge from making orders with respect to the administration.

While in Sigourney v. Sibley, 21 Pick., 101, where the probate judge had a valid claim against an estate, but had determined in his own mind that he would not enforce it, and exercised jurisdiction over the estate, making orders therein, it was held that the judge was interested as a creditor of the estate, and that the orders therein made by him were void. See, also, Hall v. Thayer, 105 Mass., 219.

As the county judge, John S. Sproull, was disqualified by reason of interest in the estate or administration, all the purported orders made by him were void, being coram non judice.

In respect to the Eichenroth claim for $1,339.81, the court below found from the evidence that it had been presented to the administratrix, properly authenticated, and that she disallowed the same, and that no suit had been brought within three months thereafter to establish it, and was therefore barred; and the court thereupon refused to allow the administratrix a credit for the payment of the same.

It seems that, after the expiration of three months, the administratrix reconsidered the matter, caused her name to be erased from the indorsement rejecting the claim, and then indorsed her allowance upon the claim.

Perhaps, if the rejection had been erased and the claim properly allowed before the expiration of the three months, and that allowance properly approved, then no suit would have been necessary to establish the claim. But as the three months had elapsed, the claim was barred by the statute, and could not be revived by the action of the administratrix so as to bind the estate.

The judgment vacating the order directing the sale of the lands of the estate, and the sale and order confirming the same, would not bind the purchaser, as she was not a party to this proceeding. But as the exhibit forming part of the application for the sale shows the interest of the county judge, all these orders are void, and may be attacked collaterally or otherwise whenever any right is asserted by virtue thereof. McNally v. Haynes, 59 Tex., 583. Appellee objected to the allowance of the claim for $1,525.67, as an approved claim in favor of appellant, upon two grounds: 1st. That the claim had not been approved by a qualified county judge; that John S. Sproull, who approved the account, was disqualified by reason of interest. 2d. That it was barred by reason of its not having been presented to and acted upon by some competent authority. The court so far sustained these objections as to require of appellant to establish byr evidence the justness of each item, and upon the hearing only allowed a portion of said claim.

[Opinion adopted October 25, 1884.]

This ruling was erroneous. The record shows that claim to have been properly authenticated October 20, 1877, filed in court December 17, 1877, and approved, presumably, at the same time by ¥m. Stone, county judge, who was succeeded in office by John S. Sproull. Each and every step in this respect seems to have been in accordance with the statute then in force. It is not pretended that Stone was in any way disqualified to make orders in said estate, and six months had not elapsed after the appointment and qualification of appellant, when the claim was authenticated and filed in the court. The fact that Sproull, after his election and qualification as county judge, indorsed a qualified approval upon the claim, in no way renders it invalid. His pretended approval was coram, non judice, and did not affect the claim in the least.

As the case is to be reversed and remanded, it is sufficient for the ends of justice to remark that appellant will have an opportunity to amend the account in the particular complained about, provided the law and facts authorize such amendment.

Our conclusion is that, to attain the ends of justice, the judgment ought to be reversed and the cause remanded.

Reversed and remanded.  