570
J'EDERAL·· UPORTERf vot
52.
A!SPLEY . v·.MUn,PHY' et·al. t:1 i!
«O£rcutt Oo'lJli'ffJ! AppeaUl, Fifth O'irduit. June 20, 1892;);. ',:,,' ;, '.;. 'I: (;:!
No.··SO. , ':'. ' ., '; .
;,'10::,';.
1..
. . 1846;' entItled An act to· organize probate oourts, " ,(2 Sayles' Early ,Llh"stTaar1i; 1786,)wbicb, in eeotlon'lfj' 'expressly repea,ls "IloU raws and parts of infQrce. rel..a tiveto . at, probate oourts," was. apPlicable. o Itt«> laWII conferring gene,rar Pl'.obate 'jurf$diotion, a.nd not .to :A:<Jt Tex.' 1844, § 2. , .Early Laws·Tex.: art. 184<1,)whlohvests in thoslboourts the special (If oPlltraots to o@veY land. 50 Fed. Rep. I'
O;N:-SPBQI;r,IO.,PBRl"ORr.(ANOB-RBfBAL OP STATUTE.
S.SAME;' .,.,')....·'JJh. ea.ot. .
it. 2, . nterre.d po,,:eruppn. to aythc;>rlze AAadu;IlDlstrlltor to make a deed in satIsfaotIOn of a cllUm for land due " by'tbe"eetktei 'When: tlie'$I:'IIIiiriistrator'lI.ecept;lld the olaim; and the court, onevi-
tqe
the CirC)uit rCourt of the States for:tlwNorthern District of, Ttttas.·n\: ' Aetion:by.Rober.tF.AspleyagainstJ.p. Murphy otherl3 to reinterest in and to block 77, in the city of'Dallall,Tex. The Qirc\:lit oourt,ov.er:,the ohjection of plaintiff, admitted in of the probate court. See 50 .Fed. Rep. 376·. :The court the jury to return a verdict for the defendants. bringllerror. Affirmed. Chas. 1. ,Evt1nl8· and B. H. Ba88eU, for plaintiff in error. Simkina!cfc MtJ1l'rW), (W. S. Si:mhi/M, of counsel,) fpr defendnnts in error. Before, PARDEE, Cirduit Judge,' and LoCKE and BILLINGS, District JUdges.' ff, '
Judge. This case is before this court upon a writ of error to the drcuitcoilrt of the United States Jor the northern district of Texll:s.i'Thesuitwas an action of trespass to try title, brought by the plainhff' in' error aga.inst the defendants in error, to recover an undivided interest in a blockof ground situate in the city of Dallas. There was a' trial and th'ere is a bill of exceptions as to the admission of,a deedblfered in evidence by the' plaintiff below·.. The bill of exceptions presen!8several grann'ds of exoeptions to the admission of the deed. But one ground was insisted on in the argument, 'and that presents the question: "In the year 1847, had the probate courts of the state of Texas the power to authorize an administrator to make a deed in satisfaction or payment of a claim for land due by his e8tate, where the administrator accepted the· claim, and the court, upon evidence taken, approved it?" The record shows that the facts in the case bearing upon this question were as follows: John Grigsby died in March, 1841. In February, 1847, the administrator of his estate, the administration of which was pending in the
· "', AsPLEY tI. MURPIlY-.
571
probate court -of Houston county, upon a petition 'which represented that Crawford Grisby had in the lifetime of the decedent a contract with him, whereby he was entitled to a conveyance of 1,000 acres out of a tract in said petition described; that said Crawford Grigsby was also deceased, and his estate was represented by an executor, who represented the heirs,-after a hearing, and upon proof having been offered. obtained the following order: "That he be, and is hereby, authorized and re::, 'quired to make a deed to the heirs of Crawford Grigsby, deceased, for one thousand acres of land, agreeable to the contract as proven." In pursuance of this order the deed was made. The question is, had the probate court the authority to make the order? The statute of 1844, entitled" An act to define and fix the practice of probate courts in certain cases," in section 2, (1 Sayles' Early Laws of Texas, art. 1341,) provided as follows. "Sec. 2. That whenever there may be outstanding bonds. obligations, or contracts in writing for the conveyance of land or tenements against the estate of any deceased person, which it may be to the interest of said estate shall be lifted or complied with, it shall be the duty of the probate court, where the succession was opened, or where the same was or may be adnlillistered, upon an application by petition of the executor or executrix, administrator or administratrix. or guardian, where all the heirs are minors, and have such guardian, after full proof of the existence of such bond, obligation, contract, in writing, and upon satisfactory evidence that a compliance with the requirements of said bond, obligation, or contract would be beneficial to the intprest of said estate, to decree that the person thus applying shall fully comply with the same, and any deed, or tender of deed, made under such decree, shall be as valid and binding as if it had been made or tendered by the testator or intestate himself." No question is made but that this section of the statute, above quoted, gave the probate courts the power to authorize the deed in question. The matters to be considered are: JilirRt, had this section been repealed? and, 8econd, what other statute, if any, was there in force which authorized it? 1. As to the repeal. After the admission of Texas into the Union as a state, a constitution (in 1845) was adopted, :which distributed the probate jurisdiction between the district courts and the inferior or probate courts. The sections which bear upon this matter are Const. 1845, art. 4, §§ 1, 15, (Charters and Constitutions, pt. 2, Tex. pp. 1772,
1773:)
"Section 1. The jUdicial power of this state sball be vested in one supreme court, in district courts, and in such inferior courts as the legislature may from time to time ordain and establish; and such jurisdiction may be vested in corporation courts as may be deemed necessary and be directed by law." "Sec. 15. Inferior tribunals shall be established in each county for appointing guardians, granting letters testamentary and of administration, for settling the accounts of executors, administrators, and guardians, and for the transactiO'.1.of business appertaining to estates; and the district courts shall have original and appellate jurisdiction and general control over the said inferior tribunals, and original jurisdiction and control over executors; administrators, guardians, and minors, under such regulations as may be prescribed by law."
572
PEDEBALREPOBTER,
voL 52.
In article 13, § 3, itwaa provided as follows, (Charters and ConstitutiOllS"pt. 2, p. 1781 :) "Sec. 3. All laws or parts of laws now in force in the republic of Texas. which are not repugnant to the constitution of the United :states, the joint resolutions for annexing Texas to the United :states, or to the provisions of this constitution. shall continue and remain in force as the laws of this state until they expire by their own limitation, or shall be alteroo. or repealed by the legislature thereof." It is thus evident by force of section 3, art. 13, all the probate laws were continued in force until they should be repealed by the legislature., The plaintiff in error contends that section 2 of the act of 1844 was repealed by the act of May 11, 1846. This last act is entitled" An act to.organize probate courts." 2 Sayles' Early Laws Tex. art. 1739. The repealing clause is found in the last section of the act, (section 27,) and is as follows: "Sec. 27. That allla"s and parts of laws heretofore in force relative to the duties of probate courts and the settlement of succeSsion be, and the same are hereby, repealed, and the unfinished business of all estates, now pending, allaH be conducted date in accordance With the provisions of this act. In the written opinion of the trial judge he reaches the conclusion that the act of 1844 was unrepealed by that of 1846, upon the ground that :decisions of the supreme court of Texas give countenance to the doptrine clause was intended by the legislature to include only general laws upon the subject of the settlement of successions, and not to include those provisions of statutes which; though they affected ·;the settlement of successions,nevertheless, from their evidentobject,w011ld more:properIy be; designated and classed as statutes undersolrltfbther head. 'He refers to Booth v. To.dd, 8 Tex. 137, and to vi Veal, 49 Tex.' 613, and'to Cattle (b. v. Boon, 73 Tex. 548, 11 S. VI. Rep. 544. , Two things, we think,'ehouldbesuggested, in this connection, as also tending'lO establish ;the conclusion reached by the court below upon the questibn of legislative>intent upon the matter of repeal: First, the questionpresetlted to the court in this case is one as to power or authoritY'which had beell conferred by 'Ii previous statute, and strictly not as to duties of the probate courts; and, secondly, the inquiry whether courts ought not, rather: than to infer that the legislature intended to sweep'il:way:alllaws on this snbjectof the settlement of estates, leaving as on thll.tdifficult and important subject only that brief statute, containing the of repeal, consisting of only 27 sections, to infer that the legislature intended to repeal only act of February 5,1840, which had for its title the very words used in the repealing clause,beillg entitled" Ail act to regulate the duties of probate courts and' thesettlemeD;t of successions," (1 Sayles' Early Laws Tex. art. 736,) a1J41>eing an act largely relating .to forms of procedure in the probate coutts, especiiilly since the question presented to us is with refer-
ASPLEY V. MURPHY.
573
ence to the action of a probate court which has been acquiesced in for upwards of 40 years. If the coneJusion reached by the trial judge is correct, that, as matter of legislative intent, it ought to be held that there was no repeal of the act of 1844, then it follows that the court had full power to make the questioned order, and the deed executed in accordance with it was properly admitted in evidence, and the record discloses no error. But in a matter so intricate, and at the same time so grave and important, as the effect of this repealing statute, and in the absence of any direct decision by the supreme court of Texas upon the question as presented here, we have thought it our duty to consider also the question of power or authority in the probate court to make the. order in dispute even under the statute of 1846 alone, and we are of opinion that this statute, in itself, gives adequate power. Sections 13-16, 2 Sayles' Early Laws Tex. art. 1739, are as follows: "Sec. 13. That every claim for money, or personal property, or for land, be. fore it can be acknowledged, must be verilied by the affidavit of the owner before the judge of probate or a notary public, stating what part is due and and, when thus verified and presented, the execunpaid and not utor or adminIstrator shall indorse thereon his acceptance or rejection, with the date of presentation. Sec. 14. That all claims accepted by executors or administrators sha11 be presented to the jUdge. who shall indorse on the same his approval 01' nonapproval. Sec. 15. That no action shall lie on a claim before itsprest'ntatioufor acknowledgment. but if a claim be rejected by the executor pr administrator, or if accepted by him and disapproved by the jlldge, tl;1.epwner of such claim may, for the establishment thereof, institute snit against e"ecutor oradministrator, before a justice of the peace or the district of the county where the succession is opened; but no judgment thereon shall gi ve· sucb claim priority, but it shall be paid currently with otheralaims of the same, degree. See. 16. That any party interested in his own right. OJ' as in right of another. may, by giving security for and damages, appeal to the district court from any jUdgment. de,crell; or order of the probate court. rendered in term time. within twenty days from the date of said judgment. decree, or order. Executors. administrators. and guardians, and the attorney for the state, may appeal without security:" . Section 2 ,of this act, in the compendium of powers which the probate court shall have. either in term time or vacation, recognizes the power" to approve or disapprove of claims acknowledged by an executor, admipi;;trator, or guardian." Thesllbstance of sections from 13 to 16, inclusive, is to provide the manner' in which a claim for land, etc., shall be verified before presentation., If rejected by the administrator,or by him and disapproved by the judge, the owner may institute suit according to jurisdiction in another court. If, on the other hand, a claim for land, etc., shall be both accepted by the adcredministrator and approved by the judge, any party in interest i. itor or heir or legatee, may appeal to the district court. It is an,ale,mental rule of construction that effect is to be given, if possible, to.the whole instrument or statnte, .and to every section and clause. (Canst. Lim. p. 58:)
e.,
FEDEIiWt· :REPOll!fER.: vol. 52,
'[;1'Wdlfterent fPortiol1ll;seem to conflict,. the courts; must barrmOO1ize them" it practicable. and lean in favor of a construction which ,op,e,.JVllicb s?me "
·
: lightiM the.histotJ0f.'fexas aridTexaslRnds, of which we must legislature intended to ,take:judieial notlcejit''8'ElElIns:clear that if and :did tepeal the Rot: of, 1844 in rega.rd:to powerofihepTobate court to Qfl'uhdisputedclll.ims forland, it ,must have heen intehdedto give tM 1!leooseary power to! the probate c0uftconstituted uilderthe act of 1846'jas 'otherwise confusion, litigation',anddelaywollidresult in the settletnoot of'guccessions. Considering the act Of 1846 '1fith reference to the other powers and jurisdiction conferred upon the; probate court, and giving effect, if possible, to the whole law, and to every section and clause,. the construction the,act of 1846. seems necessary. Section· 2 of said act ftillyiauthorizesand empowers ithe probate court "to direot the partition'of the estates.Jl'IThis power'Muld not be with'm?ch. effe9t'C!i' the same power offt'o otners;than u ll disp1ft,ed' ·. ,In the;formspursued by .the a4Ninistrator and the heirs oj Qra.wford GrigsbiY.were the forms of the act of 1844 j that is, the petitjon was filed by the administrator, and was verified by .proof of witIiessestakeu before t1;leoourt, 'But the suhstftnCeof the' procedure was authorized bv statute of 1846. " !t comprisedtqe of a .clahn :fo1- land' hot, only verified, but established, by as. to tpe contract an<;i its ha.ving not been performed by tbeobligQr, "accepttld!by the administrator, and approved by the judge; and it ended in a decree from which any party having an interest might have appealed to the diBtrict court. There may bave been irreglliarity to the witness who made the proof, and in the order of thestepsti\ken, but all the safeguards of the statute of 1846 were. observed. There was, though in a different order from that pointed out by that statute, everythinp; which that statute required, viz., the verification, the acceptance, and the approval, the thing done-the approvalofthe claim-was made bya judge in open 'Court, who had full authority. to make it. We are ofopinion that whether we adopt the places it, conclusion o(the trialjndge upon ,thegr6undsnpon which or consider it, 8,s.we do, in connection with the power given to the probate conrt by' the act of 1846 itself, there was' no, e.rror in the ruling in the court below that the de.edwas legally authorized a,nd properly admitted in evidence. .. . There waS' another poiIlt presented by the counsel for the plaintiff in error as to the authority of the probate court to go further than to recognize an undivided or an equitable interest. But'we are of opinion that since the probiLte court had jurisdiction and authotity to approve the it had all the power to authorize adeedwhitlh,in case of rejec· tion or disapproval, the district court would have had, after a decree
sebtrob18" so far as dlaiJ!ns, for htnds' are concerned" ·wGtild! De idle and riugntoPy..' I:; , " : ,'" " .. l , I '
gl",oo' ,to' the'a.dt
of 1:846i8
correct,
575 U
orqer or was a direction. for the partition of an through a suit brought there; and that the decree should have been attacked by s.ppeal, or in some direct action,. and cannot be. assailed, ppllaterally. We no error in tbe record ',o.f t4e ciJ:cu'it, be affirmed, at the coat of.,tAe plaintid"in error.
ALLENtI. UNtTED STATJ!S. '(DIstrict OOtlirt,N. D. OaHfornia. 'September 29,1892.)
ctr8TOlIS
UsBl> BY AMBRIOAN VSssllLs. of ScheduleN of the tari¢ act .of :"lowing (as 8m6tldedby the act 01 .Tune 19,1886, 24 St. Large. p. 81) a drawback ot 75 cents per ton on imported'cOM' afterwards ullM'by steam veSsels of the United States toreig,n, cioDlJl1.erce or the COa$ting traqe, was not repealed' by: the proVlslon Schedule'N',of the act of.. October 1, 1890, which merely imposeS ,8 duty of 75 cents pe.r totI'OIi 1m.p.orted 00&;' but the draWback, leS8 1 per cent-thereof, is continued' . i in by,t4,l' to section 25 ot .aid act, relating to l'&11owed under exist.lnglaw."
At SUit by Charles R. Allen against the United States to recover a drawback on certil.iIl imported coal. On demurrer to the complaint.Overmled. ' " Page k for plaintiff. . States District Attorney, for
Law.
JJas,
Ross, District Judge. but .aaingle question' presented demurrer to the complaint this case, and that is, does the act of congress of October 1, 1890, (26 8t. p. 600,) commonly known as the" MeJ{inley IUll,".repeal the provision of the act of March,3, 1883, (22 St. p. 511,) 8s i amended by the act of June 19, 1886, (24 St. p. 81,) grant-ing a drawback in certain Cases upon bituminous coal imported into the United State$? That portion of)he act of March 3, i883, fixing a duty on coal'is fdund in ScheduleN of the act, reads as follows: "Coal, shale, seventy-five cents per ton of twenty-eight bushel". eigllty pounds to tbe bushel. A drawbaQk of seventy-five cents per tQn sAall be allo;wed on all bituminous coal imported into the United States whlC,b .llSed for fuel on board of vessels propelled by steam which are engaged in the coasting trade of tbe United States, or in tbe trade with foreign countries. to allowed and . paid under sucb regulations as tbe aecretary of the treasury shall prescribe."
By section 10 of the act of June 19, 1886, it was declared"That ,tbe'provisions of N of · An act to reduce internalrevenue taxation. and forotherpurposes.' approved March 3. IS83. allowing a drawback, on bituminous co(l1 used for fuaIoD vessels propelled blsteam. shall be CODstruedto apply onl.r to vessels of the United States."