Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 69
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1884.] WALKER V. ABERCROMBIE. 69
Opinion of the court.
B. W. WALKER V. J. MINERVA ABEROROMBIE.
(Case No. 1682.)
1. PARTIES -ESTATES OF DECEDENTS.-Though the legal representative of a
deceased person's estate is the proper party to bring suit for the recovery of
a debt due the estate, since this rule has its foundation in the necessity of
protecting the creditors of the estate, it does not exist for the benefit
of debtors, and is subject to exceptions. The legal representative is entitled
to the property of the estate only in a qualified manner and for a specific
purpose; for all other purposes the title is in the heir from the moment when
descent is cast.
S. PARTIES- ESTATES OF DECEDENTS. - When over three years had elapsed since
the death of the intestate, whose estate was alleged to have been insolvent,
and during which time no one had applied for administration thereon, the
surviving widow brought an action of debt on a judgment which was the
community property of herself and of her deceased husband, and which
was rendered nearly seven years before his death. Held, that under the
facts stated in the opinion the surviving widow could maintain the action.
Following Evans v. Oakley, 2 Tex., 185.
8. SAME.--Independent of the special facts of the case, the wife, as survivor of
the community estate, could, being the owner of the judgment rendered in
the life-time of her deceased husband, preserve the debt, against which limitation
was nearly complete, by an action in her own name.
ERROR from Walker. Tried below before the Hon. John RI
Kennard.
The opinion states the case.
Hume & Shepard and JMleenney & Leigh, for plaintiff in error,
cited: Moore v. Rice, 51 Tex., 289; Howard v. McKenzie, 54 Tex.,
183; Lacy v. Williams, 8 Tex., 187; Giddings v. Steele, 28 Tex.,
748.
Abercrombie & R2andolph, for defendant in error, cited: Green v.
Crow, 17 Tex., 184-188; Little v. Birdwell, 27 Tex., 690-91; Reeves
v. Petty, 44 Tex., 253, 254; Mabry v. Ward, 50 Tex., 410, 411; Acts
15th Legislature, p. 127, sec. 125; Patton v. Gregory, 21 Tex., 517,
518; Moore v. Morse, 2 Tex., 402; Putnam v. Young, 57 Tex., 464.
STAYTON, ASSOCIATE JUSTICE.- This is practically an action of debt,
instituted by Mrs. Abercombie against Benjamin W. Walker, to
recover the amount of a judgment rendered in favor of her husband
November 16, 1871, with interest thereon.
The petition alleges and the evidence shows that the judgment
was community property between Mrs. Abercombie and her husband,
who died July 15, 1878, leaving several children, all of whom
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/85/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .