
    Thomas and others v. Jones.
    
      Iq £ £ ft- <D 3» ¿y ¿go p.o.2 a S O O ... tí S'TJ os u 2 Q.P* o C ® •< tí .típO , 2.0 Q P 5 § O S3* «*■ § gfo £©0,CD J, » 2*tí s § O 2 © 2 o c tí ^ §’3 3*1 q £ h-o 58 g = g c
    g 3 ® S to £5 © a E/tí o%o£. jb tí »3 ffil'gi J:3 S’ .2 ® 3 n K* 1 S’C ^ O "g|“g ^ 3’ * tí cr\.j-i0 © S‘M,0 5 » ° 13 w típs ~2 O CC J3 cn p 2,11 tí 3 *2 -1 a *§11-®® Stt 5 5 •<i % .j a- ■ §í l°2
    
      Error from Brazoria. This snit was instituted bjr the defendant in error, against Solomon Williams in 1841, to recover a tract of land. In 1844, the death of the defendant was suggested. The case was continued from term to term, to obtain service on his legal representatives. In 1849, the plaintiff filed a petition for tlie purpose of making parties, naming the heirs, and praying that they be made parties defendant. Afterwards tlie plaintiff filed an amended petition, in which it was averred that there, was no administration upon the estate of Solomon Williams; that his heb.:, who were named and a,erred to be bis only heirs, were minors; that E. M. Thomas was their n,i!nral guardian, but that they had no guardian appointed by the court, and piuying that one be appointed to represent them. .1 guardian ad litem was appointed, who appeared and answered on their behalf, denying the cause of action. E. It. Tilomas also appeared ami joined hi the answer.
    At tlie Spring Term, 1830, there was a verdict and judgment for the plaintiff. In 1851 a petition for a writ of error was filed by Beler McGreal, as attorney for the defendants, and Lambert Mims, “administrator of tlie estate of Solomon Williams.” At tlie last term of this court, tlie infant plaintiffs in error, by their next friend and guardian, E. M. Tilomas, moved tlie court to dismiss the writ of error, supported by affidavit, averring that the writ was prosecuted without their authority or consent, and against their wishes, and that it was prosecuted solely by tlie said Mims, who claimed to be a creditor of the estate of the deceased Williams, but wlio did not take out letters of administration until after the judgment rendered in this case.
    
      P. Me Greed and li. Hughes, for plaintiffs in error.
    
      Harris Pease, for defendant- in error.
   Wheeleb, J.

There is no averment in the petition for a writ of error that Mims is administrator. And it is only by tlie tacit admission in tlie affidavit in support of tlie motion to dismiss that we are distinctly apprised of that fact, and of liis purpose in prosecuting a writ of error. But if it sufficiently appears that lie is administrator of tlie estate of Williams, lie was not a party to tlie suit, and it does not appear that, as administrator, lie is interested in the judgment. If ilie defendants liad recovered in tlie action, it does not follow as of ■course that the land must have been subjected to administration. That would depend on facts which do not appear. Wo do not think to tlie subject matter of tlie litigation, by simply naming himself A.C., can prosecute a writ of error in a case like the present without averring that he is administrator, and that as such lie is interested in tiio subject matter ■of tlie judgment which lie seeks to reverse.

But, were we to entertain tlie appeal, we see no ground for reversing the judgment. The only error assigned which requires notice is tlie proceeding to judgment against tlie lieirs without making the administrator a party. It is averred that there was no administrator, and that tlie persons named were the only lieirs, and there being no statement of facts, tlie averments of the petition must be taken to have been proved. Tlie questiou, (hen, is whether, where a •defendant dies pending a suit for laud, and no one will administer, tlie plaintiff may make his lieirs parties defendant, and proceed to judgment against them. And wo are of opinion tiiat lie may. and that tlie judgment will be as effectual .as if there had been an administration. Tlie statute (Hart. Dig., art. G98) prevents tlie snit from abating by the death of a party, and authorizes tlie legal representatives to be made parties. By tlie common law tlie heir represented the ancestor in respect to lands, and tlie act of 1840, in force when the descent in tins case was cast, provides that ail tlie estate, real and personal, shall descend to tlie heir. (Id., art. 57G.) The act of 1S38 (pp. 33, 34, sec. 2) provided that where any person shall die intestate and no oiie will administer, tlie heir may ■be made party by scire facias; and in ease lie be a minor, tile court shall appoint a guardian to defend tlie suit, &c. The latter provision in respect to the

appointment of a guardian is substantially re-enacted in tlie law of 1S1G. (Ilart.-l)ig., art. 702.) The section first above cited manifests no intention to change tlie former law in respect to tlie persons who were to be considered tlie legal representatives of tlie deceased. Until administration, and especially in reference to lands, tlie lieir, we think, is to be so regarded within (lie meaning of the statutes passed to prevent tlie abatement of suits upon tlie deatli of a party pendente lite. Tho court appointed a guardian for the minor heirs, who. appeared and conducted tlie defense on their part, and there was no necessity to serve them with process.

We do not deem it necessary to discuss more at length tlie questions presented by the assignment of errors, for tlie reason that, we are of opinion, that tlie writ of error lie dismissed.

Writ of error dismissed.

Note 8. — Cochram v. Day, 27 T., 385.

Note D. — Grayson v. Winnie, 13 T., 288.  