
    Hiram M. Thompson v. John Duncan
    Appeal from Matagorda County.
    The whole estate of a testator or intestate passes, at his death, to his personal representative for administration, and hence an executor or administrator may sue in his own name and character for the recovery of lands belonging to the estate of his testator or intestate. [2 Tex. 311, 433; 3 id. 427, 428 ; 9 id. 25; 11 id. 87; 16 id. 413; 20 id. 81; 24 id. 441.]
    Trespass to try title. The suit was brought to the March term, 1842, of the district court of Matagorda county. The petition is in the usual form, alleging the title to the land to be in the estate of Jesse Thompson, deceased, and that the possession is unlawfully held by the defendant Duncan. It also alleges that the appellant was ‘‘duly appointed administrator of said Jesse Thompson, who died intestate, and he now brings into court a copy of his letters of administration.” The copy of the letters thus referred to forms a part of the transcript of the record and shows that the appellant was appointed administrator on the 19th of December, 1834.
    The defendant in the court below demurred in the following words: “ The defendant comes and says that he is not bound by the law of the land to answer this petition, because he says that the plaintiff as administrator has no right to maintain such an action against him.”
    The demurrer was sustained and the suit dismissed, from which the plaintiff appealed.
    
      J. W. Harris, for appellant.
    Ho briefs filed.
    
      J. Webb, for appellee.
    The letters of administration show that the appellant was not the administrator of Jesse Thompson, deceased, at the time the suit was brought: Tie therefore had no right to sue as such, and the objection was properly presented by the demurrer. By the law of Spain no one could hold the office of executor or administrator for a longer period than twelve months. Tie was fundus officio after that time, 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, 143-4.
    The law of Louisiana was adopted in 1835 by the consultation (see Ordinances p. 136, sec. 3) as the law of Texas, in relation to successions; and by that law curators were compelled to close their administrations at the end of one year from their appointment, unless for good cause the term were extended by the judge; but in no event could it be extended to a longer period than five years. Civil Code, arts. 1179, 1197, 1199; 3 Mart. (H. S.) 601.
    By the 32d section of the act of December 29, 1836, “organizing inferior courts, etc.,” it was made the duty of the several probate courts to compel a settlement of all estates previously administered upon within twelve months from the passage of the act, 1 Laws Texas, p. 154.
    This was the first law enacted upon the subject after the revolution, and it remained in force until the passage of the act of 5th February, 1840, “ regulating the duties of probate courts and the' settlement of successions,” the 32d section of which declares, “that the term of the administration of the succession is fixed at one year from the day of appointment of the administration,” etc., but the probate court may extend the time on good cause shown. The 60th section of the same act makes it the immediate duty of the probate coui’fcs “to cause all executors and administrators to whom letters of administration have been granted twelve months previous to the passage of this act, to appear before them” and settle their accounts as executors and administrators. 4 Laws Texas, 120, 129.
    This suit was brought seven years after the appointment of the appellant to the curatorship of Jesse Thompson, and by no law which was in force at the time or subsequent to his appointment could he have been the administrator when the suit'was instituted, hfo extension of his term within the prescribed limits of the law would have made him so. By the law of Louisiana his term had expired two years before, even if it be admitted that it had been extended to the utmost limit of the five years; and he was not relieved by the act of 1840, because he was out of office before that act was passed.
    But if the appellant were the administrator at the time the suit was brought, he did not present such a case in his petition as entitled him to recover. By our statute of distribution, and by the common law which was adopted in 1840, the real estate goes to the heirs. The administrator has nothing to do with it, unless it becomes necessary to dispose of it for the payment of the debts in default of personal assets. To entitle the administrator to sue for it in his own name as administrator, he should have alleged the necessity of resorting to it for the payment of the debts of his intestate, or that he had an order of the-probate court to sell it. "Without these or equivalent averments, it is submitted that he presented no sufficient cause of action, and that the demurrer was rightly sustained
    Mr. Justice Wheeler did not sit in this case.
   Ltpsoomb, J.

This action was brought by the appellant as administrator of Jesse Thompson to recover a tract of land claimed by him as a part of the estate of his intestate. The defendant by way of defense filed a peremptory exception to the right of the plaintiff to sue, thus presenting the question of law, whether an administrator can sue for the lands of his intestate.

The exception was sustained and the plaintiff appealed. The rule of the common law is, that the personalty shall go to the legal representative, and the realty shall descend to the heir on the death of his ancestor. The heir tabes the land subject to a particular grade or dignity of debts, but the personal represenatation has nothing to do with it. By statute some modifications have been made, hut none of them it is believed makes land assets in the hands of the administrator. In some of the states of the Union the-common law rule is in force, and in others it has been so qualified as to mate the lands contingently a fund in the hands of the administrator, to be sold by him and the proceeds applied to the payment of debts of every kind, where the personalty is insufficient; in such cases it would seem he could sue for land, which might be necessary to pay debts if it was held against the better title of his intestate. The difference in the rule of the common law between land and personal property never had existence in this country. To keep real estate in families, to give them greater influence and support the dignity of the aristocracy was the result of their form of government, and may be traced to the feudal ages. Guards were thrown around the descent, and transmission of this title unknown in the change of personal property. These distinctions are unknown to the civil law as it prevailed under Spanish modification in Texas; land here was thought to be of comparatively little value, and many a fine league has been transmitted with as little form and ceremony by our early colonists, as would attend the sale of an Indian pony.

All property, without distinction, was classed together. The Spanish civil law being the basis of our jurisprudence, much of our legislation after the revolution was imbued with its influence; hence, our act of congress passes all of the estate of a decedent into the hands of the personal representative; he is required to return an inventory of the land to have it appraised, and it is taken into the estimate of the value of the estate; and his bond given, with reference to the aggregate amount of the estate, binds him to its faithful administration. This would'not only seem unnecessary, but would be exceedingly onerous to him, if it conferred no right to the possession of the land. If he have a right to the possession, the care and superintendence in the due course of his administration, it would seem to follow that he would have a right of action if the possession was withheld from him.

Under our acts of congress authorizing suits to be brought against the government to establish headright claims, it was decided by the supreme court of the republic that an administrator or executor may sue, we believe, from the obligations he is under to administer the estate faithfully, that the right to sue in his own name is a necessary result.

In this case we wish it to be understood that our opinion is confined to the single question of the capacity of an administrator to sue as such for land. ¥e believe, from the record that this was the narrow ground on which it was presented in the district court by the exception. If the plaintiff never was the administrator, or if having once been, he bad ceased to be such before the commencement of the suit, we believe the exception as filed did not reach it; and that in order to have done so, it should have been differently formed. We are induced to make these remarks in consequence of the position assumed by the appellee in the argument of the case; if those positions were supported by the records, the argument and the authorities referred to would certainly be entitled to much weight.

The appellee can avail himself of such facts, if they are true, by amending in the court below; and to give him an opportunity to do so, and at the same time to enable the plaintiff to amend and make out a better case, if from the facts he can do so, the judgment is reversed and the cause remanded, with leave to both parties to amend in the court below.  