Roy v. Whitaker

ON MOTION EOR REHEARING.

Delivered January 9, 1899.

BROWN, Associate Justice.

Upon re-examination of the question, we have concluded that we can properly answer the sixth question propounded by the court, which reads as follows: "Is it competent in proceeding for the plaintiffs to make their claim to one-half of the real property sold, which they inherited from their mother, the ground for reviewing the orders made in the administration of their father’s estate, because such orders were for the sale of the whole property?” We construe this question to relate only to the review of orders of sale, and not to other orders made in course of the administration, and to the question so understood we answer as follows:

The plaintiffs have not the right to prosecute a writ of certiorari from the probate court to the District Court for the purpose of reviewing orders of the probate court made in the administration of the estate of A. M. Murphy, Sr., deceased, which directed the sale of lands, the community property of A. M. Murphy and his wife, who died prior to the death of her husband, there being no debts against the community estate.

The plaintiffs, as heirs of their mother, were not parties to the administration upon the estate of their father and are not bound by the orders of the probate court so far as they affect the interest which they inherited from their mother in the community estate. Thompson v. Cragg, 24 Texas, 582 ; Cole v. Grigsby, 89 Texas, 223 . Those orders and sales do not affect the title of the plaintiffs in the land sold in so far as they claim under their mother, unless the sale was ordered and made to raise money with which to pay the community debts of A. M. Murphy and

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his wife. Soye v. McCallister, 18 Texas, 100 ; Carter v. Conner, 60 Texas, 62 ; Moody v. Butler, 63 Texas, 210 .

A purchaser under such order who claims that the sale has the effect to pass the right of the heirs of the wife must establish the fact that the sale was made to pay a debt of the community. Moody v. Butler, 63 Texas, 210 . In the case last cited, the court, speaking by Chief Justice Willie, said: “In order to give the deed of Joel Clapp’s executor the effect of passing title to the entire land, as well that portion of which he died possessed as of the share inherited by the children from their mother, it was necessary that there should have been community debts of Joel Clapp and wife existing at the time the land was sold by Clapp’s executor. Sanger v. Moody, 60 Texas, 96 . The burden of proving this fact was upon the parties attempting to give this effect to the deed.” In Moody v. Butler, Judge Willie said the presumption that such debts existed might be indulged when the deaths of the husband and wife occurred at or about the same time, and the same proposition was stated* by Judge Wheeler in Soye v. McCallister, cited above. Undoubtedly the existence of community debts might he inferred from the proof of other facts which might be so cogent as to give to the presumed fact the probative force of positive evidence; still it would be an inference of fact and not a presumption of law. The distinction is well illustrated in this case. The law conclusively presumes, against the plaintiffs as heirs of the father, that the debts were valid and binding on his estate, but the orders and sales will not operate to convey their right derived from the mother unless the facts which give to them that effect he proved.

The rule is, that the burden of proof rests upon the person who claims to have acquired the title of the wife under such sale to prove the facts which give that effect to the proceedings of the court. The existence or nonexistence of such facts is the subject of proof in each case, and there is no reason for permitting the plaintiffs, who were not parties to the orders of court sought to he reviewed and who are not concluded by them, to sue out a writ of certiorari and have those orders reviewed by the District Court.