
    Blair and another v. Cisneros.
    Pacts which show that tho plaintiff has no right to recover in the capacity in which he sues, as that of administrator, go to the foundation of tho action, and may bo given in evidence under the pica of not guilty, in the action of trespass to try title.
    The common lav' and Spanish law in relation to estates of deceased persons, compared and discussed.
    In tho .Mexican law, acceptance by tho heir was necessary in order to vest tho estate in him; acceptance was either pure and simple, or with the benefit of inventory; and puro and simple acceptance was either express or tacit. It was express when tho title, or quality, of lioir was assumed, whether dene verbally or in authentic or private writing; and it was when the heir did some act which his intention to
    The heir could do certain acts of a conservative character, such as wore usual m pro-visory administration, without being hold to a tacit acceptance of the succession.
    See this ease for circumstances in which the heirs, minors, were held to have made a tacit acceptance of the succession; although, as a general rule, minors could not by their own act, accept of a succession.
    ■Where tho ancestor died in 1833, owing no debts, and the heirs accepted tho succession, and the widow administered in 18*19: Held, In an action of trespass to try title by the widow, as administratrix, that the grant of administration was a nullity, and that tho suit should be dismissed. (Note 6.)
    There may be eases in which after a groat lapse of time, administration, at least a limited one, may be deemed expedient; and it seems that the administrator in such a case, when suing in the District Court, must sot out tho facts and prove them, which justified the issue of letters of administration in the particular case.
    Where there is no administration, tho heirs may sue for and recover the property of the estate.
    After the lapse of a certain time, administrations must be considered as closed, whether ever administered in point of fact or not.
    Where an estate was accepted under our former laws, without benefit of inventory, no administration was necessary. But, in ordinary cases, such administration would not be considered absotutely void.
    Appeal from Jackson. The appellee, as the administratrix of Juan iTepo-maeeno Cisneros, brought this action for the recovery of a league of land, alleged to belong to the estate of the deceased. It was averred, that, after the death of the said Juan, and before the grant of administration, the defendants on the first clay of June, 18-18, did enter upon the said laud, and then, and there — and subsequently up to the commencement of this suit — did commit clivers trespasses, &c.
    The defendants severed in their answers, hut pleaded and relied upon the same or matters of a like character in their defense. By way of abatement, as it was termed in the proceedings, they pleaded that this action could not be maintained, on the ground that the deceased intestate departed bills life in 1843, and that all his property vested in his legal heirs and successors by the laws of Coalmila and Texas, without t.he aid of an administration, in file said year 1833; and that the land in controversy became the property of the said Bosalia (the plaintiff) as his surviving wife, and of Estelan, Maria, and Guadáloupe Cisneros, the heirs at law of the said deceased; and that the plaintiff, as administratrix, lias no right to the possession of said land or to this action. This plea was supported by affidavit, but the facts were again averred in a subsequent portion of the answer, with the additional statement that the said Bosalia and tiie heirs, in tho month of May, 1836, left the State and dom-iciliated themselves in Tamaulipas.and under the Government of Mexico, and that they there remained until the year 1848.
    The plaintiff, by amendment to her petition, averred that at the deatli of her husband, her children, the heirs of her husband's estate, were minors; that Maria, her eldest daughter, married in 1834, before she became of age; ancl that Gnadaloupe was ‘married in 1847, being then a minor, and from that time had been under the disability of coverture, and was not of full age. It was proved that the deceased owed no debts; that the preliminary proceedings to obtain title to his land were commenced in his lifetime, but that the title of possession did not issue until 1835, some year or two subsequent to his death; that the family continued to live upon the laud after the death of the intestate, having horses, oxen, &c.; that the mother and the eldest son took charge oí the property; and that the widow was under the direction of the authorities for regulating such matters until 1830, when the family moved away. That the sou and 1 lie eldest daughter and her husband followed the Mexican army on its retreat. The mother remained until 1837 or 1838, when the son came afier her. The mother and son returned to Victoria in 1847; and the mother took out administration in February, 18 :0. One of the witnesses testified that there was no administration shortly aftc ;■ the death of the deceased, but that tiie widow and children kept possession. A demurrer to the plea in abatement was sustained, and the plea was ordered to be stricken out.
    
      S. A. White, for appellants.
    The first subject presented for the action of the court is, whether the defendant’s plea in abatement was properly stricken out in the court below. It is not easy for us to see why this was done. The plea was to the right of the plaintiff to sue as administratrix, setting forth that the property had passed, by operation of law, into the possession of the heirs. The facts are not controverted nor denied; but, on the contrary, are fairty proven.
    It will be recollected that this descent was cast in the year 1833 or 1834, one or two years previous to the Texas revolution, and was therefore governed by civil law rules. This will make some references to civil law authorities necessary, which, from our present position, will necessarily be very limited, but the doctrine will be so familiar as to render them less important. (Sec Civil Code, arts. 982, 988.) We lay it down as a civil law rule, that there was no cessation in the possession of property between ancestor and heir, as there is under the statutes of Texas. (See Brown’s Civil Law, p. —.) On the contrary, the heir succeeded, not so much to the property, as to the person of the testator. So that, in contemplation of law, it was rather a continuation of the same person, and might be illustrated by the rules with us, in respect to corporations and kings, Who are said never to die, and gives rise to the maxim in the civil law, nemo morí potest ex parte testatus, ex parte intestatus; because his heir, to all intents and purposes, represents himself, and whatever was the ancestor’s became the heir’s, and that, whether by testament or otherwise, for he takes not by the purchase, but by representation of the ancestor. (See. Brown’s Civil law, vol. 1.)
    It may therefore be said, that when the ancestor breathes his last, the heir, as such, breathes his first. Any qualification to this rule is for-the benefit of the heir; for, as a consequence of the foregoing, the heir would inherit the liabilities of the ancestor, as well as his property, which would often place him in a worse condition than a stranger. The civil iaw adhered to this rule so strictly, that ancestors often made slaves or bondmen their heir, that the son might escape disgrace and the liabilities of their parents, and for which the slave made heir was freed.
    This last may seem whimsical enough, and it is not the practice now, but the identity of ancestor and heir is still maintained, though with some modifications, as will be seen in the Louisiana Reports, as well as the code. These modifications are, first, the right of the heir to refuse, to have one year to consider, or to accept with inventory, either of which he can do; but if he renounces at all, he must do it within one year. It is unnecessary to follow this any further, as in this case the heirs accepted by taking possession, under the authorities. This seems to us to place the heirs in the possession of ail the estate of their ancestor, with all the right they can have by or through an administrator, even if the administrator had the right to reduce the property into his own possession. We are at a loss to conceive why it occurred to the plaintiff below to take this mode of bringing her suit, unless it was to avoid difficulties more embarrassing, although more direct. Perhaps the heirs of some of them are still in Mexico, or perhaps believing that by administering the estate would be viewed as unrepresented, or representing itself, would not be subject to the same conditions or the same penalties and forfeitures as it would if the possession accompanied them in their lusts for the “fleshpots of Egypt.” Let this be as it may, from the evidence in the ease they certainly accepted tlie succession, and took possession of tlie eslate, and we can see no reason why the plea in abatement should not haves been sustained.
    If there is a possible doubt on this subject, it would see.m to be. in this, as pleaded in plaintilf’s amendment, that the daughters were minors at the opening of the succession, and (hat they married before arriving at their majority. But tlie privileges under this plea vanish immediately on tire recollection, Bf, that minors may act to their advantage, and their acts are only voidable, and not void; and they can only take advantage of their minority afler they come of age, by refusing to confirm. In this case we see no objection to the acts of minority, but on tire contrary they now actually coniirm these neis. 2d, a minor emancipated by marriage was entitled to her share of the : -.coession. (See Gaiennie v. líepp, 15 La. 1Í., 570.) Again, tlie heirs, alíliou. i minors, might accept by their curator, and tlíese heirs, by their legitimate, cun r (their mother) did accept, and since have shown no disposition to renounce ii. “The “mother and oldest son took charge of the, property under the authorities for “ regulating such matters.” This we believe to he conclusive on this point, i. e.‘, that there was such possession vested in the heirs as to take away the. right of an administrator to reduce the property into possession, and that although the object is to bold property which the heirs in tlieir right might have mrfeited.
    
      J. T. Lytle, for appellee.
    The first question which presents itself in the case is raised by tiie pica in abatement, which was submitted to tlie court and overruled. Hid tlie laud in controversy, by tlie laws in force at the time of tile death of Cisneros, vest immediately in his heirs, without the aid of an administration!'
    It is true that upon Ills death, by the rules of tlie civil law, which was tlie law in force at tlie time, not only his land, hut all his rights, charges, personal effects, and possessions of every description, descended to his succession. (See Domat’s Civil Law, B. L T. 1, S. 1, A. 5.) But it remained for (.lie heirs or executor to acceptor reject tlie succession before they were accountable for its charges or it could suffer by their acts; and there was no limitation as to tlie time when sncli acceptance or rejection should take place. (Davis's TLlrs v. Likins, 9 La. It., Mil.) At tlie time tlie succession was opened by the appointment, of an administratrix tlie common law liad been adopted and was in force, and the administratrix, having taken charge of the estate, had a right to sue for ail its possessions. (See Thompson ». Duncan, I Tex. It., 485; Graham v. Vining, 2 Tex. It., 433.)
    The administratrix having, under our system, a right to sue, the point now present,s itself, had DeLeon a right to grant tlie laud if it was embraced within the limits of tlie “ten littoral leagues,” &e.
   IIisMPUXLL, Cu. J.

At first view it may appear anomalous that some of the facts, afLer the plea in abatement was ruled out, should have been admitted in evidence. But the, matters charged in tlie plea were averred in another portion of the answer; the. testimony was received without objection, and, in in fact, was admissible under the, general issue. The facts went to show that tlie property was not open to administration; that it had by law vested in tlie heirs, and that tlie appointment was consequently a nullity, and these are objections to the foundation of the action, and, in fact, to tlie validity of tlie entire proceeding.

The ground on which the plea in abatement was rejected lias not been stated. Tlie appellee admits that upon the death, under the laws then existing, all the property descended to tlie heirs, but, that it remained for the heirs to accept or reject tiie succession before they were accountable for its charges, or it could suffer by their acts, but that there was no limitation as to when such acceptance or rejection should take place, and that at the time the administrator was appointed the common law was adopted, and the administratrix, having taken charge of tlie estate, has a right to sue for all its possessions.

The appellants contend that the acts of possession and ownership on the part of the ireiily were such as amount, tosn acceptance of the succession by the heirs, an r .nviqueulij'' preelud.'.l the nee.'sfity of administration. In exam-inin'' th;. ij.-ct there will app ‘nr a striking dUierence between Hie doctrines of ''-peni- ii ¡mil of English jurisprudence in relation to the rights of heirs in tlie tv : e< (,f t!i" deceased. Tlie really, b\ the English law. is cast upon the lieir, suef, 1, may be, to certain charges, never exceeding, however, the amount of pron-riy received. The. personally was, by tlie ancient principles'of tlie common law, supposed to have vested in the king, as parms put rice and general tr.- ■!"<■ of the, kingdom. This prerogative, for some time exercised by tlie kin.T’s i ivu ministers, was afterwards vested in the prelates, on the presumption Uial they were of belter consciences Ilian laymen, and had more knowledge (,i what would conduce to the benelit of the soul of the deceased. The goo.Is of the intestate were, held in trust for distribution in charity to tlie poor, and for uses denominated by the superstition of the times as pious. The abuse of this power, reposed in the ordinary, became so flagrant that by statute 31st Ed. ILL O. II. lie was required lo depute the administration to the nearest and most lawful friends of the deceased, and this is tlie origin of administrators, as they now stand, in most of the States recognizing the common law as tlie basis of their jurisprudence. Under this system it appears that the real property at once vested in the heirs, the personalty primarily in tlie sovereign, on certain trusts and for certain purposes. The modern doctrine seems to be, that the personal property is in abeyance until the grant of administration. Whatever may be the right of heirs in personal property nnadministered, it is clear that they arc entitled to the residuum after the discharge of the debts.

In this State, by our present laws, all the property vests in the heirs, at the death, subject, however, to administration.

In tlie. Spanish code no distinction was made between the real and personal property oí a succession. It descended, in one mass, to the heirs; was im-pressivfwhh the like qualities; and was all subjected to the same rules and dispositions. The heir, by force of a legal subtlety, was considered as representing the person of the deceased; ¡uní that in fact they both constituted the same p.w.-on. (L. 13, Tit. 9, Part. 7.) Consequently, on the. death, there passed to the, heir all the property, rights and actions of the deceased, as also liis debts and obligations. (Diccionario, verbo, HEREDERO.) The debts, the heir was bound to discharge, if the estate.vested in him, without qualification— whether th ■ assets received were sufficient or not. To save the lieir from such responsibility the law accorded to him a defined period within which to determine whether he would accept tlie estate, and afterwards the further benefit of inventoiy was granted, by which the lieir was relieved from responsibility beyond the amount received. Bnt notwithstanding the fiction that the deceased and heir constituted the same person, and that consequently the property and debts of the former passed to tlie latter, yet, it seems well established by the laws of Spain that the heir was not invested with the character of the representative of the deceased until he accepted the inhertanee. (Escriche, Dic-cionario, verbo, Heredero.) And consequently, at the death, he was nod vested with the property of tlie estate, bnt only with the faculty of acquiring it by acceptance. (Poutenoy v. Cecil’s Heirs, 8 La. B., 321.) This was the rule, under tlie code of 180S, in Louisiana. Under the present code, the succession is acquired by the lieir immediately on tlie deatli of the deceased, as declared in article 93-1, C. C.; though this is modified by article 9-10, suspending the right of the lieir until he decides whether lie accepts or rejects. Under all the codes and the laws of Spain, acceptance has a retroactive effect, and the lieir is considered as having succeeded from the death. (Escriche, verbo, ACEPTACION DE HERENCIA.)

But, without treating further of general principles in relation to the descent of a succession, let us consider the point more immediately presented for decision. One of tlie principal questions in the cause, is, whether, in fact, this succession was accepted by tlie heirs, in 1833, so as to vest, in the language of the plea, the estate in the heirs, without the necessity of administration. Acceptance of a succession is divided into two classes, viz:

1st. Pure and simple, and

2d. Acceptance with the benefit of inventory.

By acceptance pure and simple, the heir, as a general rule, with some excexrtions, is charged with the debts and legacies of the deceased, though they exceed the amount of the hereditary property. By acceptance with the benefit of inventory, the responsibility of the heir does not, as before stated, extend beyond the amount received. Pure and simple acceptance may be either express or tacit. It is express, when the title, or quality, of heir is assumed, whether this be done verbally or in authentic or private writing; and it is tacit, when the heir does some act which necessarily presupposes his intention of accepting. (L. 11 and 18, Tit. (i, Part. 6; Diccionario, verbo, ACEPTACION DE HERENCIA.)

The appellants contend that by this latter mode was this estate accepted; that the acts of the surviving wife, the mother of the heirs, and of the heirs themselves, were such as to denote, unequivocally, their intention to accept the estate. When the intention of an heir is to be deduced from his acts, there may occasionally arise some difficulty in determining whether his acts are such as to induce acceptance, or whether they are only of a conservative character, or such as are usual in a provisory administration of the property. The law gave a certain time for deliberation and for the making of an inventory, and meanwhile the heir had the power to perforin such acts as were necessary for the preservation of the property, and to save it from loss and damage. Such acts may be done by the heir without coinpromiting him to the acceptance of the succession, but when ho takes possession and does acts which lie could only rightfully do in the capacity of heir — when, for instance, he rents tile houses, cuts tile timber, changes the form of the buildings, or sells without the authority of the judge, collects the debts, or pays the legacies, such acts are indicative of ownership, and maiiifost an intention of acceptance as heir. (L. 11, Tit. 6, part 6; Diccionario, loco citato.)

In this case the acts of the surviving wife, and of the family, were such as characterize proprietorship. They acted as owners of the property. They remained in possession and controlled it for years. The title to the land now in controversy was not completed in the lifetime of the deceased, hut was issued some eighteen months after his death, and was doubtless then received by the widow and the family. Mr. De Leon, a witness, testifies that the widow was under the direction of the authorities for the regulation of such matters until tile breaking out of the war, and that she ami the sou took charge of the property. These acts are such as would he done by those who considered themselves as the legal owners, and not such as are merely conservative against loss and injury. But It is contended that, notwithstanding such acts might bind the heirs to accept, had they been of age, yet, being minors, no acceptance was in fact made, that the estate was left vacant, and it is consequently open to their acceptance, or what, it is contended, is equivalent to a grant of administration.

It may be admitted, as a general rule, that minors cannot by their own act accept of a succession, but this is subject to exceptions. An infant or minor under seven years of age cannot accept of a succession, except through the intervention of tutors or curators. A minor below fourteen years, under paternal power or tutorship, cannot accept without the sanction of the father or tutor, or, if lie have neither, without the authorization of the judge. But the minor over fourteen years, having no father or curator, can accept and acquire for himself an inheritance, with the privilege, if it be found prejudicial, of subsequent repudiation. (L. 13, Tit. 6 and 7, Tit. 10, part 6; Diccionario, verbo, ACEPTACION DE HERENCIA; Febrero Mejicano, vol. 2, p. 121.)

There is no evidence as to the precise ages of the heirs at the death of the intestate. The presumption is that the sou and eldest daughter were over fourteen. The son, with his mother, took charge of the property. He followed the Mexican army on their retreat in 1S3G, and returned for his mother in 1837 These acts indicate free agency and a maturity of age beyond that of fourteen years. The oldest daughter continued with the family in the possession of the estate, and it is a fair presumption that she had attained fourteen, before marriage, in 1834. The mother was the natural guardian and tutrix of her children, and it is questionable whether her acts, as ‘such, would not he construed into an acceptance for their benefit, especially for that of t he youngest child. The father, where a minor of seven years is instituted as heir, can accept the inheritance for him. (Escriche Diccionario, loco cih io.)

¡■'rom the facts, we are of opinion tha> ilie estafe; -ras accepted in the interval between 1 lie death in 1833 and the removal of t: s family in 1836; that it received all ihe administration necessary to prepare it for distribution among the heirs. There was, in fact, no nceessiiy for a formal administration. There were no debts, and had there been any the creditors w ere not without remedy. The estate, then, was fully vested in the heirs, without any debts, legacies, incumbrances, or charges of any description ; and the question is, whether sixteen years after the opening of the succession or the death of the ancestor they can be divested and the estate subjected to administration, when neither creditors nor heirs can derive any benefit from the act, and when no end or object legitimately within the scope of an administration can be effected.

The uniform policy of our laws lias been that administration, when taken, should l)o conducted with such prudent activity and energy as will bring the affairs of a succession to an adjustment at once speedy and advantageous to creditors and others interested. The intention is that, as the residuum, rightfully belongs to the heirs, they should be placed in possession as soon as justice to the creditors will permit. This policy, so forcibly enjoined, after the grant of administration should, when we consider the reasons upon which it is founded, have some weight against the grant itself, when not applied for until the lapse of such time after the death. "To permit a grant, as in this case, after the lapse of sixteen years, to be available for the recovery of the property, would, as a general rule, inflict the most serious evils upon heirs, their creditors and assignees. The heirs, as a general rule, or claimants under them, would, after the lapse of some time, he in possession of the property, and it would be a grievous wrong to permit them to he disturbed by a grant of administration, unless cause be shown for the which does not in this case. There be cases in which, after lapse of time, an administration, at least a limited one, may be deemed expedient. Debts may not become due, or charges may not accrue against the estate, until years after the succession is opened, and other like cases which must be determined on as they arise. But in this case there is not now nor was there ever a debt. The surviving wife, the son, and the daughters with the consent of their husbands, or if that •cannot be obtained, the authority of the court, have full capacity and power to sue for, and if they have right, recover the property. Why, then, under such circumstances, should there be, after the intervention of so mueli time, an administration? Let ns suppose that the widow and the heirs had continued in the possession of the property, having alienated, perhaps, portions of it for a valuable consideration: would it be tolerated that, under fcliQ mask of administration, a stranger who might have obtained letters should recover this property from the heirs and their bona fide assignees? S.uch would, however, he the legal and inevitable effect, were the appointment regarded as having any force. The grant is retroactive. It takes possession of the estate as it existed at the death of the deceased, though, by tiie way, it will be found that this comprehensive retroaction of a grant of administration is incompatible, unless certain exceptions be admitted, with the immediate investiture, on death, as recognized by statute, of the estate in the heirs. To permit a grant under such circumstances to be made, or to operate so disastrously upon heirs and others in possession of the property in good faith, would be a great evil. An authority ■conferred by law for necessary and salutary purposes, would be perverted to ¡the worst, "innocent possessors might, after the lapse of twenty or thirty years, ’do. disturbed in their rights, and this where there had never been a creditor of the estate, and where the heirs .were perfectly competent cither individually or through their guardians, to assert their rights.

Upon tiie circumstances of this casi', the fact that the estate was accepted and vested in the heirs in 183IÍ, or previous to the removal of the family, tlfat there are no debts, and that the heirs can individually assort their rights in the properly, and upon principles of public policy which, after the lapse of a sufficient time, must regard succession as closed, whether ever administered in point of factor not,'we are of opinion that this appointment must be regarded as a nullity, and that the plaintiff, as administratrix, lias no right to-maintain tills action.

The question of tiie effect of an acceptance was not sufficiently discussed in argument to authorize any exposition further than is necessary to the decision of this cause. When an estate is accepted without tiie bonelit of inventory, there is no necessity for administration, as the heirs-become responsible for all liabilities. But, so far as the question involved in this ease is affected, it is immaterial whethei this estate, as belonging to minors, be regarded as accepted with tiie benefit of inventory or not. '(’lie acceptance, let it be made in what mode it may, vested the property. It was, perhaps, tiie misfortune of the-country that tire regulations in the laws of Spain, in relation to the acceptance of successions, were practically and to a great extent disregarded. Administration was very generally taken on the estates-of deceased persons, without regard to the mode of acceptance, and whether tire heirs had, in strictness of law, rendered themselves responsible or not. In ordinary cases we would not hold that administration taken after a simple or unconditional acceptance, though unnecessary, would he. absolutely void.

But in cases like the present, whore there are no debts and no necessity for administration, tiie property having vested in the heirs, and a long time having intervened between the death and the application, we must hold (lie, appointment to he null, and not permit an authority conferred by law to bo perverted-to purposes for which it was never intended.

We are of opinion tiiat there was error in sustaining the exception to the plea in abatement, and, as the suit cannot be sustained'by the plaintiff in her representative capacity, it is ordered that the same be dismissed.

Reversed and dismissed.

Note 6. — Hurt v. Horton, 12 T., 286; Francis v. Hall, 13 T., 180; Grande v. Herrera. 15 T., 533 Soye v. McCallister, 18 T., 80; McMahan v. Rice, 16 T., 335; Wardrup v. Jones, 23 T., 489.  