Fitzwilliam v. Campbell

after stating tlie case as above, delivered the opinion of the court.

Tbe defendants deraign title to tbe land sued for from a sale made under a decree of tbe probate court of tbe county of Brazoria, republic of Texas. Tbe land was sold as tbe property of tbe estate of James W. Fannin, deceased. Tbe decree authorizing tbe sale was rendered on December 30, 1839. The conveyance was made to tbe purchaser by authority of the probate court on February 4, 1840. Tbe only material question in tbe case is raised by tbe following assignment of error:

“The court erred in admitting in evidence, over the objections of the plaintiff, the transcript of the probate proceedings of Brazoria county, Texas, and the deed to George W. Grant made thereunder, because the probate courts of Texas, at the time said proceedings were had [prior to February'5, 1840], had no jurisdiction oj: power to sell the property of an estate, and that the action of the probate court of Brazoria county in making said sale was, coram non judice and void.”

More than 40 years ago, in Baker v. Coe, 20 Tex. 429, Wheeler, J., in delivering tbe opinion of tbe court, said that “much tbe greater part of tbe real property of tbe state is held under probate or sber*35iffs’ sales.” It has been more than 60 years since the decree was entered which is attacked in this case, and we are advised by the argument of the learned counsel for the plaintiff in error that “there has been no decision of the supreme court of Texas upon this precise question,” and that “this is the first Texas case in which the question has been presented in such shape as to require a decision.” To correctly understand a statute, we must know its subject and its purpose. When we understand its subject-matter and general purpose, we have the key to wliat would otherwise appear doubtful. To effectuate the general intent by construction, general words may be restrained, or those of narrow import may be expanded. The act of December 20, 1836, was in force when the decree in question was rendered. It is entitled “An “act organizing the inferior courts, and defining the powers and jurisdiction of the same.” Hart. Dig. Tex. 1850, p. 146. The act creates a county court for each county in the republic of Texas, composed of a chief justice and two associates, and provides that four terms yearly shall be held in each county. The jurisdiction of the county court is defined, and the office of clerk created. The act then provides that the chief justices of the county courts shall be judges of the probate courts for their respective counties. Before quoting the part of the statute conferring probate jurisdiction, let us examine other parts of the act. Provision is made (with some exceptions) for 12 terms a year of the probate court. Id. art. 253. Appeals may be taken from decrees of the probate court to the district court of the county. Id. art. 254. The clerk of the county court is made clerk of the probate court, and is required to record all wills and other instruments required by law to be recorded in that office. Id. art. 257. Before the passage of this act the primary courts had probate jurisdiction, including the authority to decree sales of real estate belonging to the estates of decedents. Baker v. Coe, 20 Tex. 430, 433. The act provides that all probate business heretofore pending before the primary courts shall be transferred to, and be completed in, the probate courts. Hart. Dig. art. 258. It is made the duty of the probate court to compel a settlement within 12 months" of all estates heretofore administered upon. Id. art. 259. Section 24 of the act specially relates to the jurisdiction of the court, and is as follows:

“The chief justices of the county courts shall be judges of probate for their respective counties; shall take the probate of wills; grant letters of administration on the estates of persons deceased, who were inhabitants of, or resident in said county, at the time of their decease; shall appoint guardians to minors, idiots, and lunatics; and in conjunction with the associate justices, shall examine and settle the accounts of executors, administrators, and guardians; and said chief justices shall have full jurisdiction of all testamentary and other matters appertaining to a probate court, within their respective counties.” Id. art. 252.

Does the statute confer jurisdiction to decree a sale of real éstate? If the section stood alone, it may be conceded that the phrase, “shall have full jurisdiction of all testamentary and other matters appertaining to a probate court,” would be at least of doubtful significance. Certainly apter language could be used to confer jurisdiction to sell the real estate of an intestate. But this section *36is part of an entire act. The act, taken as a whole, creates a prohate court, and provides for the administration and final settlement in that court of the estates of decedents, with provision for an appeal to the district court. There is nothing in the scheme to indicate that the probate court is deficient in its power to entirely settle the estate. It does not appear that parties interested must go to the district court within the year in which final settlements must be made, to obtain decrees of sale, before making settlements in the probate court. In its general terms, the act seems to contemplate that all that is needful to make complete settlements may be done in the probate court. This construction becomes more essential v/hen it is remembered that no difference in the power of the court exists-as to real estate and personal property. It has power to decree the sale of both or neither, . -Not one estate in twenty could be settled without a sale of some of its property. The act is passed by the legislature of a republic imbued with the principles of the civil law, which in such cases made no distinction between personal property and real estate. In fact, the administrator at that time placed both the land and the personal property in his inventory of the property of the estate. In a suit begun in 1842, relating to an administration opened in 1834, Lipscomb, J., speaking for the supreme court of Texas, said:

“These distinctions are unknown to the civil law as it prevailed under Spanish modification in Texas. -Land here was thought to be of comparatively little value, and many a fine league has been transmitted with as little form and ceremony by ouf early colonists as would attend the sale of an Indian pony. All property, without distinction, was classed together. The Spanish civil law being the basis of our jurisprudence, much of our legislation after the revolution was imbued with its influence. Hence our act of congress passes all of the estate of a decedent into the hands of the personal representative. I-Ie is required to return an inventory of the land, to have it appraised, and it is taken into the estimate of the value of the estate; and his bond, given with reference to the aggregate amount of the estate, binds him to its faithful administration.” Thompson v. Duncan, 1 Tex. 485, 488.

Tbe acts which follow the act of December 20, 1836, indicate that the legislature of Texas believed, that the power to sell the property of an estate was vested in the probate courts of Texas. On May 18, 1838, the second congress passed an 'act providing for the settlement of estates of deceased soldiers. Section 3 -of the act provided:

“That no sale of any of the effects of a deceased soldier or officer shall be made, unless by order of the court granting letters of administration, approved by the secretary of war, and published in some newspaper sixty days; and all sales made contrary to the provisions of this section (unless by heirs of full age) shall be entirely null and void.” Sayles’ Early Laws, § 471; Hart. Dig. arts. 985-988.

By an act of December 24,183S, this act of May 18, 1838, just above quoted, was amended, and section 1 of the amendment provided:

“That the above recited act shall not be so construed as to apply to the duty of any administrator upon the estate of any deceased citizen soldier, who 'was a citizen of Texas, in the full exercise of his rights as such at the time of his death.” Sayles’ Early Laws, § 548; Hart. Dig. art. 989.

An act of the third congress, of date January 23, 1839, regulates sales of real estate by administrators, executors, and guardians. It *37provides that the sales shall be made on the first Tuesday of every month, after advertisement for 30 days. Id. arts. 99.1, 992. These acts are pertinent, as showing the intention of the legislature in the act of December 20, 1836. They are legislative constructions of the former act. In Rex v. Loxdale, 1 Burrows, 447, Lord Mansfield said:

“Where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall he taken and construed together as one system, and as explanatory of each other.” .

In Doggett v. Walter, 15 Fla. 355, the court held that:

“The meaning and intention of the legislature in the enactment and repeal of laws may often he found in the contemporaneous and subsequent action of that body in reference to the subject-matter, and the evident intention of the legislature will control the construction of its acts.”

In Webb v. Sellers, 27 Tex. 423, the probate court of Washington county, at the October term, 1838, had made a decree authorizing an administrator to sell real estate belonging to the estate of his intestate. It is true that no question was made as to the construction of the statutes conferring probate jurisdiction, but the validity of the administrator’s sale was necessarily involved. The court said:

“The evidence as a whole shows very clearly, we think, that the probate court of Washington county exercised a rightful jurisdiction in ordering the sale of the land in controversy for the payment of debts due by the estate. It is clearly enough shown that all the orders of the probate court relating to the matter in controversy were made in the course of the administration.”

In Pendleton v. Shaw, 44 S. W. 1002, the court of civil appeals of Texas holds valid á sale made under decree of the probate court of Washington county rendered at the September term, 1839. This sale had previously been held valid by the United States circuit court of appeals for the Fifth circuit. Land Co. v. Pendleton, 52 U. S. App. 328, 26 C. C. A. 608, 81 Fed. 784. In Ferguson v. Templeton, 32 S. W. 151, the court of civil appeals of Texas, for the First district, said:

“That a. purchaser at administrator’s salo under the law of 1836 was not required to look further into the record Ilian the order of sale, for the reason that the prohate court was one of general jnrisdiclion, and its order would therefore protect the purchaser.”

In Pleasants v. Dunkin, 47 Tex. 343, the court treats as valid an administrator’s sale made under a decree of the probate court rendered at the January term, 1840, which was under the law of December 20, 1836.

It is true that in none of these ca.ses, so far as appears from the reports, was the point urged upon the consideration "of the court that the act of December 20, 1836, was not sufficient to confer jurisdiction upon I he probate court. Seemingly the bar conceded that the probate court had jurisdiction. The cases perhaps have some value from that fact. They surely have value as showing the practical contemporaneous construction placed by the courts on the act in question. In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law is entitled to great respect. Edwards’ Lessee v. Darby, *3812 Wheat. 206, 6 L. Ed. 603; U. S. v. Pugh, 99 U. S. 265, 269, 25 L. Ed. 322.

It is insisted by the plaintiff in error that the case of Bank v. Dudley’s Lessee, 2 Pet. 492, 7 L. Ed. 496, sustains the contention against the jurisdiction of the probate court. We find nothing in that case in conflict with the views we have expressed. The decree in question in that case was made in August, 1805, and the law under which it was made had been repealed on June 1, 1805. The statement of the case shows that “the plaintiff insisted, and the court ruled, that the law under which the court proceeded in granting the license to sell had been repealed before the license was granted.” This holding of the trial court was affirmed. The phrase, “jurisdiction of all probate and testamentary matters,” which was commented on in the case, was quoted from the constitution of Ohio. The question as to this phrase was whether it sci fixed the jurisdiction of the court of common pleas to sell real estate of a decedent that it was not subject to the control of the legislature. Marshall, C. J., said:

“ ‘Jurisdiction, of alt probate and testamentary matters’ may be completely exercised without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power or to comprehend it. The constitution did not mean, and could not mean, to deprive the legislature of the power of exercising its wisdom on a subject so vitally interesting to the people, nor do its words convey such an intent. Were it even true — which we cannot admit — that the constitution established the jurisdiction of the court of common pleas in the case, still the legislature might prescribe the rule by which that jurisdiction should be exercised.”

The question and circumstances were entirely unlike the present case. In Ohio, the jurisprudence being unaffected by the civil law, the distinction between personal property and real estate was maintained in administrations. The administrator had no title to or control over the real estate. He had the power only to sell by virtue of a statute which was repealed before the order of sale was made. The court was construing a- sentence in a state constitution which was intended to briefly indicate the jurisdiction which might be conferred on the court of common pleas by the legislature. The legislature had conferred the jurisdiction, but withdrew it before the decree in question was made. The supreme court was not in that case, as we are in this, construing a statute creating a court and establishing its jurisdiction, and providing elaborately for the administration of estates. An isolated sentence in the constitution of Ohio was under consideration, and there were no contemporaneous constructions by the legislature or judiciary of that state indicating that the words quoted were intended to confer jurisdiction to sell the property of a decedént. On the contrary, the legislature had assumed that legislation was necessary to confer such jurisdiction. In construing section 24 of the act of December 20, 1836 (Hart. Dig. art. 252), we do not look alone at its language. The words conferring jurisdiction, viewed alone, might or might not be held sufficient to confer jurisdiction to decree a sale of a decedent’s real estate. But when we examine the entire act in the light of the jurisprudence of the republic as it existed when the act was passed, and in view of the sub*39sequent legislative construction, and consider also the practical contemporaneous construction of it by the probate courts, and the sanction of that construction by the acquiescence of the highest Texas courts, we are convinced that the act conferred on the probate court the jurisdiction to render the decree in question. We think the judgment of the circuit court is right, and it is affirmed.