
    Boyle v. Forbes, Adm'r.
    An administrator who was appointed when the laws of Louisiana relating to successions were in force in this country, could not sustain an action in his representative capacity commenced after the expiration of a year from his appointment, without showing a continuance of tho administration by the Probate Court.
    If an administration has been closed, the presumption is that all the debts have been paid off; and it would seem that after a lapse of thirteen years from the grant of administrntion, and no order for its continuance open, the presumption would be equally strong that all the debts had been paid off.
    Independently of the statute fixing the precise period of one year to the administration, it would seem that after a lapse of thirteen years the presumption would be that alt legal demands against the succession had been discharged.
    Where tho petition showed that administration had been granted to tho plaintiff in 1838, and there was no demurrer, but the defendant, byway of amendment of Ins answer, not under ■ oath, denied the representative character of the plaintiff, it was held that the plea was well pleaued.
    Appeal from Fayette. This was a suit brought by the appellee, as administrator of W. II. Carson, against the appellant to recover a tract of land granted by the government of Coahuila and Texas as a headright to tho intestate. The petition set out the grant and ñeld-notes, and charged tho trespass to have been committed by tho appellant. It alleged the death of Carson, the grantee, in 1838, without a will, and the issue of letters of administration to the plaintiff by the probate judge of Brazoria county, that being (lie comity of the residence of the intestate at the time of his death. The letters showed the appointment to have been made on Che 21st day of February, A. D. 1838. The petition did not disclose, by averment or otherwise, that any order of the Probate Court for continuing the succession open up to tho time of bringing this suit, the 12lh June, ISiil, had ever been applied for or granted.
    Tlie appellant olijected tt) the appellee’s right to sustain this action, and his objection was overruled. Tho overruling the exceptions to the appellant’s right to sue for the land on the facts stated in his petition was the only question presented for consideration.
    
      Fred. Tate, for appellant.
    The right of an administrator to maintain air action as such is derived from iiis appointment; and whenever his appointment ceases to be of force, whether by mere operation of law or by a removal from office by the Chief Justice, his right to sue must necessarily expire with his appointment. In an action of ejectment the defendant may show that the title of tho plaintiff expired before the institution of the suit. (W. S. Dig., TíÜo»Ejeotment; 1 Blackf. K., 2G.)
    The letters of administration, taken in connection with tiie law in force at the time they were granted, show that the title of the appellee as administrator had expired long before the institution of this suit. He therefore had no right to sue as such. By the law of Spain no one could hold the office of executor or administrator for a longer period than one year. After that time he was functus officio, and the estate went to the heir; or if he were absent, or a minor, to a curator appointed for him. (Johnson’s Laws of Spain, 143 to 4.) By the ordinance and decree of the 22d of January, 1836, (Vide Ordinances, p. 136,) the 3d section of which will he found in Hartley’s Digest, art. 083, the law of Louisiana was adopted as tlie law of Texas in relation to successions, and by that law the term oí the administration is fixed at one year, unless [SY] continued by the court upon good cause shown, but in no event could the term be extended beyond five years. (Civil Code, art. 1170, 1197, 1199; 3 Hart. FT. S., COL)
    By the 32d section of the act of filie 5(h of February, 1840, (‘Hart. Dig’., art. 1026.) the term of the administration is fixed at one year from the day of the appointment of the administrator, unless continued upon good cause shown. The 60th section of the same act (Ilart. Dig., art. 1042) makes it the immediate duty of the Probate Courts “to cause ail'the executors and administrators to “whom letters liave been granted twelve months prior to the passage of this “ act to aplicar before them ” and settle their accounts as executors and administrators. This suit was brought thirteen years after the appointment of the appellee as administrator of w. H. Carson, deceased, and by no law in force at the time of or subsequent to his appointment could he have been recognized as the administrator when the suit was instituted. Nq extension of his term within the prescribed limits of the law could have made him so. By the law of Louisiana, which was in force at the time of his appointment, and which must therefore govern this case, his term had expired eight years before, even if it be admitted that it had been continued to the utmost limit of the five years. The act of 1S-10 did not relievo him, for by that also the term of the administration is limited to one year unless continued, &c. (Ilart. Dig., art. 1026.)
    Although no objection be made at the trial of a cause in the lower court to the authority of the plaintiff to sue, yet, if the record does not show that he had authority, the objection will be heard in this court and will be fatal. (1 Tex. It., 203.)
    But'in this case the appellee’s representative authority (and of course his authority to sue) was contested by the plea of ne unques administrator, which was properly pleaded in bar and should have been sustained by the court. (3 Hill R., 4-1 i; 16 Wend. R., 579; 2 Greenl. Ev., 324 to 329 ;-2 Williams on Executors, 1381.)
    On the trial of an issue joined on a plea of ne unques administrator the onus proban di is on the plaintiff, who lias to prove the affirmative of the proposition. (2 Williams on Executors, 1381; 2 Greenl. Ev., 321 to 329.)
    The expiration of his term deprives an administrator of all piower of further administration. (7 Mart. FT. S„ 619.) To entitle the appellee to maintain an action after the expiration of the live j'ears for the recovery of property belonging to the estate of his former intestate he should have been appointed administrator do bonis non, proof of which, if done, should have been made under the plea of ne unques administrator. An executor has no right to maintain a suit as such thirteen years after the death of the testator, although the term be extended. (4 Mart. R., 340.)
    The court erred in overruling the plea of ne tinques administrator.
    
    
      J. T. Ilarcourt, for appellee.
    T. The appellant Boyle, who was defendant in the District Court, filed his original answer on the 23d day of September, 1851, in which he nowhere denies the representative character of the appellee, but on the contrary tacitly admits it if he does not positively do so by his plea. An admission once made cannot by any subsequent amendment be wiped out. The plea denying Forbes being administrator -was made in an amendment filed April 26th, 1852, and neither previous to that time nor at any subsequent time did Boyle demur to Forbes’ petition, unless the plea of “ no such admin- “ istrator ” could bear the name of a “ special demurrer,” as it is styled in the appellant’s hill of exceptions.
    II. The pica of “no such administrator” was taken up and argued as a “ special demurrer ” to the petition before filie trial of tlio cause commenced, as appeared by the bill of exceptions taken by the appellant. Hence, if said plea was admissible at all as an amendment, the appellant by his own act having confined it to the face of the petition, and not having even read it upon the trial, he did not by his bill of exceptions to the refusal of instructions asked nor by his assignment of errors place himself in a position to object in the Supreme or District Court to the representative character of Forbes.
    III. The law of Louisiana was very much modified, if not superseded, by an “act organizing Inferior Courts,” &c., approved December 20th, 1S36. (Hart. Dig'., p. 14G.) 'The Louisiana law required a new bond to be given at the end of a year from the grant of letters if tiro administration was continued. The above act leaves this discretionary with the court, and all the subsequent laws leave the requiring of new security a matter of discretion. The law of February 6th, 1840, provides that any administrator appointed before the passage of the law failing to make a settlement, should be liable to the penalty prescribed by the law. (Art. 1042.) That penalty was attachment. (Art. 1020.) So the law continues the administration, only prescribing a penalty if the administrator did not settle in the limited time. The law of January ICtli, 1813, expressly provides that no administrator should bo required to settle, except on the petition of a creditor, &c. (Art. 10G7.) This law continues till administrations indefinitely. The present law prescribes no limits to administrations. (Arts. 1191, 1193, 1195, 1190, 1198.) And the same law provides for old administrations to be continued under its provisions. (Art. 1220.) The whole history of our probate legislation contradicts the position that it is absolutely necessary for an administrator to obtain an order of court to continue the administration, but on the contrary the spirit of (.lie law implies that the functions of an administrator were intended to re,main in full life without the order of continuance ; and under our statutes it does appear to ns to be plain that if an administrator, subsequent to the law of December 20th, 183G, showed his letters or other evidence of authority, it would be, incumbent on the party attacking his representative capacity to show that his office had ceased.
    IY. Is not the plea of “no such administrator,” a plea in abatement within the meaning of our statute? If so, it should have been sworn to. (Art. GOO.)
    y. Under the Louisiana law administrations could bo prolonged for five years. Betweeu February, 1838, (in which mouth Forbes was appointed administrator,) and February, 1843, five years elapsed, and in January, 1843, the law was passed providing that no administrator should be compelled to settle except by creditor, &c. (C. C., art. 1197.)
   Lipscomb, J.

At the time this succession was opened we had no statutory enactment on the subject. The laws of the State of Louisiana in relation to vacant successions had been adopted by the ordinance of the 22d January, 1S3G. (Art. 9S3, Hart. Dig.) In the case of Flores, administrator, v. Howth & Dwyer, 5th Texas, it was ruled by this court that under the laws of Louisiana an administrator held his appointment, for one year only, hut that it could be extended for sufficient cause' shown from year ‘to year not exceeding five years. The laws of Louisiana, so adopted, continued in force until superseded by the act of the. Texas Congress of February 5th, 1S40.

By this act, however, the limitation was still coni inued to one year for closing the administration, unless continued open for good cause, shown. (Hart. Dig., 102G.) It would seem, then, that, at the date of the institution of this suit the authority of the administrator held by virtue of his appointment in 1838 had long before expired, and the right of action for the land sued for belonged to thehoir. If the administration had been continued so long, not however a fair presumption, it could only have been done by an affirmative act of the Probate Court, which ought to have been'averred hi the petition and proven. If the administration was not continued by the court the appointment would cease to confer any authority at the expiration of one year from the letters of administration.

In the ease oí Fisk v. Norvel. administrator, at the present term, it was decided that the property o£ an intestate belonged to his heirs, incumbered however wiih his debts, and that the object o£ the administration was to pay off and remove the incumbrance, afler which the heir was entitled to the possession oí the, balance not absorbed by the debts. That this is correct we entertain not the least doubt. If the administration has been closed the presumption is that all the debts have been paid off and it would seem that after a lapse o£ thirteen years from the grant of administration, and no order for its continuing open, the presumption would be equally strong that all- the debts had been paid off. If this was not the case the creditors would have taken some steps ere this to have liad them paid.

We believe that the plea of no administrator was well pleaded, and if true that it was decisive against the plaintiff’s right to sue. because it was in his representa! ive capacity alone that if could have any pretext for suing- for rights that belonged to the heir. Independent ly of the statute fixing the precise period of one year to the administration, it would seem that after a lapse of thirteen years the presumption would lie that all legal demands against the succession had been discharged. If however this was not the case, and protracted litigation had prevented this from being doin', it would be the duty of the administrator to repel the presumption by proof of the fact to sustain his right of action. The judgment must be reversed and cause remanded.

Reversed and remanded.  