
    Nathaniel Townsend v. N. H. Munger, Adm'r.
    Where a right is claimed by virtue of a proceeding of the Probate Court it is not necessary, so far as the admissibility of a transcript of the proceedings of the Probate Court is concerned, that it should purport to be a transcript of all the proceedings.
    It is competent for a party to give in evidence such of the proceedings of the Probate Court as are material to his case, and it is nob incumbent on him to introduce more.
    Where, in the fall of 1843, the defendant rendered an account to the Probate Court as executor of an estate, which was received and allowed by the court, the court held that it was sufficient to charge him as executor at that time, and that the presumption was that a previous order for his removal in the spring of 1843, and the appointment of another in his place, which other had qualified and given bond, had been revoked. (Note 52.)
    The only action which the District Court could take (in 1843) upon an appeal from the Probate 'Court was either to dismiss tho appeal if not prosecuted in a manner to enable the court to take cognizance of and try the‘case, or to proceed to trial and judgment upon the merits.
    Where, in 1843, an executor filed an account, denominated by the Probato Court an account current, and the court gave judgment against him in favor of the estate for the balance due, from which judgment there was an.appeal, upon which appeal the District Court ordered that, because there did not appear sufficient record to enable said court to proceed to hear and try said cause, the same should be remanded to the Probate Court for further proceedings: Held, That, the judgment appealed from being final, the only further proceeding which the Probate Court’eould take in-respect to that judgment was to carry it into effect, it tumid not revise its own final judgment, rendered at a previous term, and-that, having done so, its subsequent judgment was null and void without appeal.
    The general rule is well established that an executor or admini?drator shall nob be charged with any other goods or assets than those which came to his hands. An outstanding debt duo to tlie decedent is not assets in the hands of his executor or administrator to charge him where there has not been gross negligence, or where the delay in collecting it has not been collusive, fraudulent, or unreasonable.
    Appeal from Travis. The petition of Monger, administrator de bonis non of tlie estate of Thomas McQueen, filed September 23d, 1851, alleged tlie death of McQueen in 1834, leaving a will; tlie probate of tlie will, same year, in the jurisdiction of Austin where McQueen had resided ; the confirmation of Townsend and Jas. Baird as executors; the confirmation of Baird’s final account by tlie Probate Court of the county of Austin, in 1841, showing a balance due tlie eslate. of $112.G8, which he was ordered to pay over to Townsend; the resignation of Baird at the same time; the judgment of said Probate. Court of the county of Austin, at September Term, 1847, against Townsend in favor of the estale, for $1,225.27; tlie removal of Townsend" by same court, at February Term, 1851); tlie appointment of Monger administrator de bonis non, by the same, court, a.t March Term, 1S50; the loss of a third of a league of land on the Bio Frio, of the value of three thousand dollars, by tlie neglect of said Townsend (o pay tlie taxes, in consequence whereof it was sold, in 1848, to pay taxes of 1840. The petition prayed judgment agaiust said Townsend for all the sums above mentioned and interest.
    The answer of Townsend, filed October IGth, 1851, denied that Manger was administrator, and contained a general denial.
    The jury found a verdict in favor of the plaintiff for principal and interest, $1,923.01, and in damages for neglect of duty, $922.50. Judgment accordingly. Motion for new trial, on tlie ground, 1st, that tlie verdict was contrary to law and evidence; 2d, damages excessive; 3d, improper admission in evidence of tlie transcript of the proceedings of the Probate Court of Austin county; 4th, that tlie court erred in instructions to the jury. September 13th, remittitur of the $922.50; damages for neglect of duty. Motion for new trial overruled, •September 13th. Notice of appeal.
    There were a statement of facts and bills of exceptions, from which it appeared that tlie defendant excepted to the admissibility of tlie transcript of the proceedings of tlie Probate Court of Austin county, offered by the plaintiff, on the ground that it did not purport to be a transcript of all the proceedings, the certificate of the clerk merely certifying that such papers (naming them) as the transcript contained were true and perfect transcripts from tlie originals. The objection was overruled. It appeared from the transoript that the allegations of the plaintiff’s petition were true, except as to tlie land sold for taxes.
    But it also appeared from the same that Townsend had rendered an account in 1841, showing a balance against himself of $932.4G, for which judgment was rendered against him in favor of the succession ; also another account, in 1843, showing a balance against Townsend of $596.31, upon which was the following order:
    Bepublic op Texas, \ Having examined the foregoing account current, County of Austin. J it is ordered, adjudged, and decreed that tlie same is allowed and received, leaving a balance due from tlie administrator in favor of the estate of Thomas McQueen, deceased, of five hundred and ninety-six 31-100 dollars; and the foregoing account is ordered of record.
    SAN Felipe, December 2oth, 1843.
    J. K. McCreary, Probate Judge, A. G.
    
    JOHN Woodrupp, Associate.
    
    Filed December 25tli, 1843. J. Hillyard, P. O. A. G.
    
    
      Nathaniel Townsend presented liis account current as one oí the executors of the estate of Thomas MoQueen, deceased, which was received and allowed, as per decree on file. Appeal taken by ST. H. Munger, attorney for heirs, December Term, 1843.
    Then occurred the following :
    REPUBLIC OP Texas, \ District Court, Austin county, April, Spring- Term,. County of Austin. / 1845.
    N. II. Munger, appellant, 1 On the twelfth day of April, in the year of our v. [■ Lord one thousand eight hundred and forty-N. Townsend, appellee. J live, the annexed-stated cause came on to be heard, and therein our District Court made its decree in the words, to wit r “In this case, there not appearing sufficient record to enable the court “to proceed to hear and try said cause, it is ordered, adjudged, and decreed “that tlie same be remanded to tlie Probate Court for further proceedings “ therein; and it is further ordered that tlie appellant pay tlie costs of tlie suit “in this behalf.”
    Upon the receipt of the above mandate the Probate Court, at May Term, 1846, appointed auditors to restate tlie account. On the 28th of April, 1847, the auditors reported, showing a balance due the estate of $1,22(3.27, for which, the Probate Court entered judgment against Townsend in favor of the estate. This was the judgment sued on in this case. It appeared that Townsend ivas removed in 18Í30, on the ground that he had been absent from the State for more than three months without tlie permission of the court.
    The defendant then introduced what purported to be a more complete transcript, to which the plaintiff excepted, but for what cause did not appear. It disclosed that, on the petition of tlie heirs of McQueen, there liad been an order for the removal of Townsend in April, 1843, and for the appointment of N. H. Munger administrator, with the will annexed; Hunger's oath, April 24th, 1843; his bond approved May 30th, 1843, and order for letters to Munger, same date.
    The court charged the jury as follows, to which the defendant excepted :
    That if they believed from the evidence that Townsend filed an account for settlement as executor, and which the Probate Court received and acted upon, after the time it appears he was removed as such by the Probate C,ourt of Austin county, it was evidence that lie was executor at tlie time of filing- such account, and that he is chargeable as such in this suit.
    That N. II. Munger, as attorney for the heirs, was authorized to take an appeal to the District Court from the judgment confirming-said account, and that the mandate from the District Court, in the case of N. II. Munger against N. Townsend, copied into the transcript read by the plaintiff, remanding said cause to the Probate Court for further proceedings, was sufficient to authorize the Probate Court to restate the account of Townsend as executor, and to charge said Townsend with notice of such restatement and of (ho judgment of the court thereon, or at least that the recital in the transcript from the Probate Court of Austin county, that the appeal had been remanded from the District Court, was evidence of that fact, and raised tlie presumption of notice to Townsend of the proceedings had thereon.
    The errors assigned were :
    1st. In allowing tlie plaintiff’s transcript to be read to the jury.
    2d. The charge of tlie court to tlie jury was wholly erroneous.
    3d. The refusal of the court to grant a new trial.
    4th. The court rendered judgment in favor of the appellee, whereas it should have been rendered in favor of the appellant.
    
      Oldham fy Marshall, for appellant.
    I. The first assignment is submitted to the court.
    II. The court charged the jury that Munger, as attorney for the heirs, was authorized to take an appeal from the decree of the Probate Court confirming Townsend’s account
    
      Townsend's account was tiled and confirmed under tlie act of February 5tli, 1S40. That act (Hart. Dig'., art. 101!)) provides tlie manner in which such accounts shall he filed and confirmed, and for the allowance of exceptions to-the account. No exceptions whatever appear to have been taken to the account at the lime. Tlie act also provides (Ilart. Dig., art. 1037) for an appeal to the District Court, and that the appellant shall give bond. The right of appeal is given to any person who “shall think liimself aggrieved,” and manifestly means a person interested in the estate as heir or creditor, &c.
    The court charged, secondly, that the mandate of the District Court authorized tlie Probate Court to open and restate the account. Allowing the District Court acquired jurisdiction, the power of (hat court was limited to a trial of such appeal and the allowance of additional testimony to that taken in tlie Probate Court. The District Court did not try tlie cause ou appeal, nor did it oilher affirm or reverse tlie decree of tlie Probate Court, but simply remanded the case for further proceedings.
    The power of an appellate court is either to try a cause de novo, under tlie statute, or, as a court of error, to reverse, affirm, or reform the judgments of inferior tribunals, and, in case there is no final judgment, to remand tlie cause for further proceedings until final judgment shall be rendered. The order of the District Court- simply dismissed the cause, leaving; the judgment confirming tlie account in full force. Upon the return of tlie mandate of the District Court to the Probate Court, the latter possessed no power over the order of confirmation other than to give it execution. That court possessed no power to set aide or reverse a previous decree and to give a new judgment. (Chambers-!'. Uo-lges, 3 Tex. K., iU7.) The order of tlie District Court does not vacate or annul tlie decree of confirmation; it does not even refer to it, but simply remands the cause for further proceedings.
    III. The District Court erred in overruling the defendant’s motion for a new trial upon (lie grounds stated in the motion.
    And, first-, the verdict is contrary to the evidence and tlie law.
    The petition charges Townsend upon a judgment and decree rendered in 1847, which, as lias been shown, was totally void; and was void for the additional reason that, at tlie time such judgment was rendered, Townsend was not executor, bat Hunger was administrator, and the court had no further jurisdiction over him; hut he was bound to account, to his successor.
    The pel ii ion alleges that the defendant was removed as executor, and plaintiff was appointed administrator, &o., at the February Term, 1850, whereas the evidence shows that a similar appointment and removal were made in 1843.
    Tlie pci it ion charges Townsend upon a judgment of tlie Probate Court adjusting ids accounts as executor in 184-7, wlien t.lie evidence shows that he was removed as executor four years before that time.
    The verdict and judgment charge Townsend with the amount found due from Baird upon the settlement of liis accounts, and which lie was ordered to pay to Townsend, and also with interest upon that sum, when there was no evidence showing that the same ever came into his hands. (2 Williams on Executors, 1548.)
    Ar. JI. Hunger, for appellee.
    I. Not having appellant’s assignment of errors before me, I cauuot, perhaps, take up the questions in the order in which the assignment will present them. I will, however, take up the questions that were raised in the court below as they occurred before that tribunal.
    Tlie. first, question made by the defendant (appe.llaut) was as to the admissibility of tlie transcript, read by plaintiff, from the records of the Probate or County Court of Austin county, on account of the alleged insufficiency of tlie clerk’s cerlitieate attached to the same. The objections urged were not that the transcript does not contain true copies of all Hie papers and proceedings ¡hat it purports to ho a transcript of, but that it does not contain a copy of every paper, judgment, decree, &c., in the succession of Thomas McQueen, deceased. It is conceived that this objection was not well taken, and that there is neither law, sense, nor reason in compelling a party to cumber up his transcript with copies of a mass of irrelevant papers, consisting of petitions, writs, attachments, orders of sale, accounts, &e., from the year 1835 (the time when Townsend was appointed executor) tip to the year 1852. The plaintiff’s transcript contained all that was thought necessary to sustain his suit. It was the defendant’s privilege to obtain ail additional transcript, which privilege he availed himself of, and produced a transcript, alleged to be a copy of the entire proceedings in the succession of said McQueen, taken from the probate records of Austin county, but only read a portion of it as evidence. It will be seen by reference to the statement of facts, which contains the clerk’s certificate to both transcripts, that the two certificates are similar in their nature. Neither one certifies that the foregoing transcript is a true copy of all the papers and proceedings in the succession of' Thomas McQueen, but eacii one certifies that the copies of papers, decrees, judgments, &o., contained in the foregoing transcript are true copies from the record of said succession. The transcripts are not at all contradictory; but the transcript read by the defendant contains something more than that read by the plaintiff.
    II. The defendant in the court below did, and I presume will in the appellate court, in his argument, object streuuously to the validity of the two judgments rendered in 'the Probate Court, which now form the cause of action. The first judgment mentioned in the petition was in favor of Townsend, as executor, and against James Baird, a co-executor, upon a final settlement of said Baird’s account. Townsend, in his last account, did not account for this judgment or any part of it. In a former account he charges himself with amount received from James Baird, $05.00, but this was prior to the rendition of the judgment against Baird. It is to be presumed that Townsend collected the judgment for the estate of McQueen; but, whether he did or not, he is liable for the judgment and interest from the time of its rendition, as lie has neither shown nor attempted to show any reason why it was not collected.
    The other judgment will be considered more at length. It will be seen by reference to the statement of facts as contained in the transcript that Nathaniel Townsend, on the 25th day of December, 1843, came into the Probate Court of Austin county, and filed his account as executor of Thomas McQueen; that said account was acted upon by the court and a judgment or decree rendered thereon; that N. II. Hunger, as attorney for the heirs of McQueen, appealed to the District Court; that the judgment of the Probate Court was reversed and remanded to the Probate Court for further proceedings; that auditors were appointed by the court to examine said account and report •thereon; that, by the report of said auditors, said Townsend was found to be indebted to said estate in the sum of $1,225.27; and that the Probate Court thereupon rendered judgment against said Townsend for the sum of $1,225.27. It will doubtless be contended by appellant that this last judgment of the Probate Court was an ex parte proceeding; that Townsend had no notice of it, and that no process was served on him to bring him into.court; but it will at once be seen that this argument is futile, for he brought himself into the Probate Court by filing his account; when the appeal was taken he went into the District Court with the appeal; and when the case was remanded, he went back to the Probate Court with the mandate, and was in court, a party to the proceedings, when the judgment was rendered.
    The appeal taken by Hunger from the first judgment of the Probate Court on Townsend’s account was in accordance with the law then in force, which says, “that if any person shall think himself aggrieved by the judgment, seu- “ tenee, decree, or determination of any Probate Court, such person shall be “at liberty to appeal therefrom to the District Court.” (Hart. Dig., art. 1037.) The appointment of auditors and their report upon the account was in strict compliance with the law. ‘ (Hart. Dig., art. 1019.)
    It is believed that the judgment under consideration conformed to the law in force at the time of its rendition in every particular; at any rate, it is the judgment of the Probate Court, and the Supreme Court of this State has set-tied this question no less than on four different occasions. In the case of Tol-liver and Dewees, Administrators of Peters v. Hubble, decided January Term, 1851, the court said : “The assignment presents the single question, Can the “judgment of the Probate.Court be set aside and held to be invalid upon a ‘■collateral inquiry into its sufficiency?” The negative of this proposition was laid down by this court in Sutherland v. Do Leon, First Texas Reports, and iu Lynch & Clements v. Baxter, last term of the court, and in Neal v. Hodge at the present term, so that the doctrine is now fully settled that such judgment is binding until it has been reversed or set aside by a proceeding having that object directly in view.
    III. The defendant in the court below mainly relied for his defense upon a, judgment of the Probate Court rendered on the 24th day of April, 1843, by which he was removed from the executorship and 1ST. II. Hunger appointed administrator of the estate of said McQueen. But it will be seen by Townsend’s last account, (see statement of facts,) liled on the 25 th day of December, 1843, that he was administrator, or at least acting as such, eight months after the order or judgment, of the Probate Court, by which he was removed, was made. He is therefore estopped from denying that he was executor at the time of filing his account, for he thereby did an act which the law will not permit him to gainsay or deny. (2 Tex. R., Swenson et al. ». Walker’s Adm’rs; 1 Grecnl. on Ev., sec. 22; and the doctrine of estoppels generally.) By filing his account as executor he thereby admitted that he was executor at the date of that account. (Id., secs. 193 and 527 a, and the doctrine of admissions generally.)
    Lipscomb, J., did not sit in this case.
   Wheeler, J.

The objection to the admissibility in evidence of the transcript of -the record of the Probate Court, introduced by the plaintiff, because not certified to contain all the proceedings of the court relating to the admissibility of the succession, is not well founded. It was competent for tire plaintiff' to give in evidence such of the proceedings as were material to his case, and' it was not incumbent on him to introduce more.

Tlie principal questions iu the cases are in relation to the validity of the judgment of the Probate Court, rendered iu 1S47, which constitutes the principal cause of action, and the sufficiency of the averments and proof, to authorize a recovery on the smaller demand embraced in the petition — the judgment in favor of Townsend, as executor, against Baird, rendered by the Probate Court in 1841.

And, first, as to the validity of the judgment rendered in 1847. The court held, and we think rightly, that the rendering of his account iu the Probate Court, as executor, by the defendant, and the judgment of the court upon it, after the order for his removal iu 1843, was evidence sufficient to charge’ him as executor at the date of the rendition of the account and judgment. The presumption is that the order for his removal had been revoked, or that he was afterwards reinstated in his office; and this presumption is strengthened by the subsequent order removing him in 1850.

A more serious objection to the validity of the judgment is the apparent want of jurisdiction — the court, at a previous term, having rendered a final judgment in the case, touch remained in force, and there having been no notice to the defendant of the subsequent proceedings and judgment in the Probate Court.

Upon the appeal from the judgment'of the Probate Court, the law evidently required that the District Court should proceed to try the case anew upon the merits. (Hart. Dig., 1037.) The only action which the District Court could take upon the case was, either to dismiss the appeal, if not prosecuted, in a manner to enable the court to take cognizance of and try the case, or to proceed to trial and judgment upon the merits. The court, however, declined to try. the case, because of the defectiveness of the record, and remanded it to the Probate Court for further proceedings at the costs of the appellaut. The judgment appealed from being final, the only further proceedings which the Probate Court could take in respect to that judgment was to carry it into effect. It could not revise its own iiual judgment,'rendered at a previous term. (3 Tex. R., 517; 4 Id., 200; 5 Id., 487.) That judgment remained in force until reversed or annulled by some proceeding having that object directly in view. (Ib.) ISTo such proceeding in the Probate Court is pretended, and if its judgment, subsequently rendered, had been upon such a proceeding it was void for the want of notice to the defendant. The District Court neither affirmed nor reversed the judgment of the Probate Court appealed from, hut simply remanded the case, leaving' its merits untouched. It did not exercise its jurisdiction upon the merits of the judgment, and, of course, it left it remaining in force. If the jurisdiction of theDislrictCourtattachedforanyotherpnrpose tlian simply dismissing the appeal, the limit of its legitimate exercise was to try the case, and either affirm the judgment or reverse and render its own judgment in the premises. It could not delegate its power, that is, it could not, by remanding the case for further proceedings, confer upon the Probate Court the jurisdiction, which the law had conferred and enjoined upon the District Court, or by its mandate authorize proceedings in the Probate Court which the law did not authorize. STor could its mandate amount to notice to the defendant that the Probate Court would proceed to take such further proceedings not authorized by law. The action taken by the District Court had no other effect than simply to dismiss the appeal and determine the supersedeas. (Lubbock v. Vince, 5 Tex. R., 411.) IVe conclude that the Probate Court had no authority to render the judgment now in question, having at a previous term finally adjudicated the same subject-matter, and having no jurisdiction of the person of the defendant, by notice either actual or constructive, and, consequently, that the judgment is void.

This conclusion would require that the case be dismissed if this were (.lie only cause of action contained in the petition. It, however, remains to consider the sufficiency of the averments and proof to authorize a recovery upon tiro other cause of action set forth in the petition — the judgment of the Probate Court in favor of the defendant in this case as executor against his co-executor. And here it is to be observed that there was neither averment nor proof that the judgment was collected by the defendant, or that it might have been collected by the use of reasonable diligence, and this, it seems, was necessary to a recovery. The general rule is well established that an executor or administrator shall not be charged with any other goods as assets than those which come to his hands. (2 Williams on Ex’ors, p. 1419.) An outstanding debt due to the decedent is not assets in the hands of his executor or administrator to charge him where there has not been gross negligence or the delay in collecting it has not been collusive, fraudulent, or unreasonable. (14 Johns. R., 446.) An executor is not chargeable with a note in his hands as assets until it is actually collected, unless he makes himself so chargeable by some act of gross negligence or fraud. (8 S. & M., 682; 2 Williams on Ex’ors, 3 Am. from 4th London edition, p. 1348 to 1435, and notes.) In the treatise of Mr. Williams, above, referred to, it is said : “ With respect to that part of the estate of an ex- “ ecutor or administrator which consists of ehoses in action, the law has long “ been settled that, although debts of every description due to the testator are “ assets, yet the executor or administrator is not to ho charged with them till “ he has received the money. So if the executor or administrator recovers at “law or in equity any damages or compensation for any injury done to the “ personal estate of the testator before, or since his decease, or for the breach “ of any covenant or contract made with the testator or with himself in his representative character, all such damages thus recovered shall be assets in bis “ hands, the costs and charges of recovering them being deducted, but lie shall “ not be. charged with them until he has reduced them into possession. Tims, “ in Williams v. James, 1 Campb. R., 364, in order to prove assets in the hands “ of the defendants who were executors, an account rendered by them was “ given in evidence, in which they slated that £1,000 had been awarded, as due “to the testator’s estate, from a person who had been jointly concerned with a him in underwriting policies of insurance. But Lord Ellenborough u hold t-liat this was not sufficient proof of assets, as it did not show that any u part of the sum awarded had been received by the executors.” (Id., 14*21.)

Note 52. — Where the fiduciary capacity of one acting as administrator is recognized by the Probate Court, his authority cannot be called in question collaterally for the purpose of invalidating his lawful acts done in the duo course of administration. (Poor u. Boyce, 12 T., 440; Hurt r. Horton, 12 T., 285; Dancy v. Stricklinge, 15 T., 557; Bayne v. Garrett, 17 T., 330; Soyov. McCallister, 18 T., 80; George v. Watson, 19 T.,354; Baker v. Coe, 20 T.,429; Giddingsv. Steele, 28 T., *732 ; Davis v. Wells, 37 T., 606.)

It seems, therefore, that to have entitled tlie plaintiff to a recovery upon the cause of action in question, it must have been averred and proved either that the defendant had collected the money, or, at least, that he might have done so by the use of reasonable diligence. Had the proof been sufficient in this respect, possibly the insufficiency of the averment might have been cured by the verdict. As, however, there was not sufficient proof, the verdict must be set agirte and the judgment reversed as to this cause of action also. But as the defective statement of the cause of action may be cured by amendment, and the omission in the proof may be supplied upon another trial, the cause will lie remanded to afford that opportunity.

Reversed and remanded.  