Page 638
15 S.W. 638
MANNING 
v. 
MAYES.
Supreme Court of Texas.
February 24, 1891.
        Commissioners' decision. Appeal from district court, Freestone county.
        B. H. Gardner, for appellant.
        MARR, J.
        By the judgment of the district court of Freestone county in the year 1889, in the original suit of the 
appellee, Robert Mayes, against the appellant, John Manning, administrator of the estate of T. G. Mayes, 
deceased, which was an action of trespass to try title and for partition, the costs of said suit, including 
one-half of the costs and expenses of the partition, which was made under the decree of the court, were 
adjudged against said appellant, as such administrator, to be certified down to the county court, and "paid 
in full in due course of administration." The total amount of these costs, as shown by the bill of costs, is 
$77.33. About four months after the above judgment was rendered, it was filed, together with the bill of 
costs, in the county court for allowance and classification. That court, on the 11th day of April, 1890, 
ordered the claim to be paid in full, and classified it as a second-class claim against said estate, which it 
also declared to be insolvent. The appellant resisted in the county court the classification of the claim as 
made by that court, insisting that it belonged to claims of the fourth class, and that it ought not to be 
allowed as of the second class, because the judgment of the district court had not been filed in the county 
within 30 days from the date of its rendition, and because the same had not been incurred in the 
preservation of the estate, except the item arising out of the partition, etc. These are the only objections 
that need be noticed, as they are those only which appellant presents in his assignment of errors as 
contained in his brief. On appeal to the district court it rendered, in effect, a judgment similar to that of 
the county court. From this last judgment of the district court the present appeal is prosecuted.
        We think that there was no error in the classification of the claim as made by both the district and 
county courts. By the second paragraph of article 2037 of the Revised Statutes, "expenses of 
administration and the expenses incurred in the preservation, safe-keeping, and management of the 
estate," are declared to be of the second class, and have priority accordingly. The act of the administrator, 
as he was bound in duty to do, in defending the original suit between the parties to prevent the recovery 
of the land of the estate, or to protect its interest therein, was clearly an act done by him in "the 
preservation, safe-keeping, and management of the estate." For the legitimate expenses so incurred he 
was entitled to a credit if he had paid them. Id. art. 2192; Williamson v. Robinson, 56 Tex. 347; Callaghan 
v. Grenet, 66 Tex. 236. As to the other question presented, we do not think that the claim was barred or 
lost its priority because the judgment was not presented in the county court within 30 days after it was 
rendered. We are of opinion that the court below was correct in holding that article 2029 of the Revised 
Statutes was not applicable to the question. This article plainly, by its very terms, refers to such 
judgments as are contemplated in the preceding article, (2028.) They are judgments rendered against an 
estate of a decedent on claims rejected "either in whole or in part by the administrator," and upon which 
suit has been brought within 90 days, and culminated in a judgment against the estate. The view of the 
law we have expressed is further strengthened by article 2024, which allows the holder of an ordinary 
claim against the estate, which has been approved by the administrator, 12 months in which to present it 
in the county court, and the failure to do that within that period does not completely bar, but only 
postpones, the payment of the claims. Thus it appears, from what has been said, that the holder of a 
rejected claim has 90 days in which to commence action against the administrator, and a holder of the 
other class has one year to file his claim in the county court. It would be difficult, therefore, to believe that 
the legislature intended that a claim allowed against the estate by a court of record should be outlawed, or 
even lose its priority, on account of a delay of 30 days. We think that the judgment should be affirmed.
        STAYTON, C. J.
        Report of commission of appeals examined, their opinion adopted, judgment affirmed.