A. S. Walker, J.
The right of appellants to the land depends upon the validity of the grant of administration under which the sale was made at which Baker purchased.
The validity of the administration “depends upon the facts as they existed at the time the letters were granted.” Withers v. Patterson, 27 Tex., 501.
These facts can be ascertained from the record, supported by all presumptions which are indulged in support of the act as a judgment of a court of general jurisdiction. In other words, if jurisdiction is hot negatived by the record it cannot be attacked in a collateral proceeding. This rule is stated in Guilford v. Love, 49 Tex., 741, by the late chief justice of [633]*633the supreme court. The paragraph on the subject is as follows:
“Justice Bell, in discussing the question of what may be presumed in favor of the action of county courts, as exhibited in their orders or judgments, in the case of Withers v. Patterson, says: ‘The question presented in such cases is, how far is proof (which is wanting) to be supplied by presumption? The circumstances which would have authorized the court to act as it did 'act (within the limits of its jurisdiction being implied) are presumed to have existed.’ ‘But presumptions are indulged in the absence of proof and not against proof.’ 27 Tex., 496 (citing authorities). . . . In Freeman on Judgments, sec. 132, on Silence of Record, he says (quoting from 35 Cal., 460): “It is of no consequence whether the jurisdiction of the court affirmatively appears or not on the judgment roll; for if it does not, it will be conclusively presumed ’ (citing authorities).”
Taking this as a guide, let it be applied to the record. The statement given in connection with this opinion gives a full digest of the proceedings in the probate court to be examined.
The administration granted in 1838 upon the estate of Lorenzo De Zavalla, who died in 1836, to his son Lorenzo, was, beyond question, valid.
This original administration was extended by express order twice. The last order of extension was until January, 1841.
In 1841 a partition of lands of the estate was made, regular in all respects. In the partition proceedings a city lot in Galveston-and a labor of land on which the family resided in the junction of Buffalo Bayou and the San Jacinto river were reported as unsusceptible of partition. Certain personal property also was shown to the court to be Unsusceptible of division, and to be of a perishable nature. Orders of sale were made for sale of the lands on twelve months’ credit, as required by law. bio terms of sale were fixed in the order for the sale of the personal property.
[634]*634All the property ordered to be sold except the Galveston lot was reported as sold by the administrator to the September term, 1841." The aggregate amount of the sales was $3,997.50.
The report, there being but one, did not show the terms of sale. Under the law the land would be on twelve months’ credit.
It would have been within the power of the administrator, after making these sales for partition, to have divided the money realized among the distributees — one-half to the widow and one-tenth to each of his brothers and sisters, as the lands were to be divided. It would also be the duty of the probate court, in event of his failure to do so, to enforce a disbursement of these funds. The proceeds of sale added to the money reported on hand, $3,997.50+ $2,246.01= $6,243.51.
What became of this money is not disclosed. It is evident that the probate court had not relieved the administrator from his trust before his removal. On the minutes of the court, at its August term, 1842, about the time the sale notes would mature, is an entry, “ Continued,” applied to the administration. This may have been intended as an extension of time. At least it did not negative such extension.
January 2, 1843, application was made to the court by Fock, husband of the widow of the deceased, herself entitled to one-half interest in the estate, showing that the administrator had left the republic, and “ had been absent from the republic for more than twelve months,” “ and that the estate is suffering from neglect,” asking the removal of the former administrator and his own appointment as administrator de honis non.
This application was entertained. Citation against the administrator was published, and he was removed. At the same time Fock was appointed to the administration. This appointment was made February 27,1843. It does not appear from the record or otherwise that, at this time, any [635]*635of the estate had gone into possession of the heirs except the land partitioned (which -was one and a half leagues on right bank of San Jacinto, in Harris county).
There was, so far as the records of the administration showed, the Galveston city lot (ordered to be sold), the headright league and labor certificate unlocated, though an advance of $70 appears to have been paid a surveyor to secure its location, the money reported, and the sale notes or proceeds therefrom.
These subjects, or some of them, may have needed attention; some may have been suffering from neglect; the salé notes may have remained uncollected. The court, upon such showing, confided administration. It cannot be said that there was nothing to administer; that the money had been collected and paid to the administrator; or that the remaining property had in fact passed into the hands of the heirs.
Having an unsettled estate suffering from neglect, the court had jurisdiction and exercised it.
We concluded, therefore, that Dock’s appointment was valid.
If Dock’s appointment was valid, his administration would be a continuation of the control of the estate by the court. IBs trust character would continue until lost by the action in some way exercised of the court, or by his non-action as such, for so long a time, or under such circumstances, that the court would refuse or lose its power to control his acts.
It would exist so long as the court should recognize him as such, and while those interested in the estate would allow it. It was not necessary that his term of administration be expressly extended, there being no law so requiring it as a condition of the legality of his acts. While recognized as such by the court, and he remained in charge of the property, he would be in law and in fact the administrator.
The record is meager and at times obscure as to the acts of Dock in his administration. He was tardy in executing the bond, but it was executed and it was approved by the court.
[636]*636October, 1843, a complaint was exhibited against him by the county clerk representing “that the estate of L. De Za,valla has been open for several years, and of the fees of office a balance remains unpaid,” etc. "Upon this a citation was issued.,, The rule against him appears to have been discharged upon his payment of all the clerk’s costs. •
In an entry made at the March term, 1844, it appears that Fock had taken the statutory oath, and that letters had in fact issued. Appraisers were appointed. Ho in\Tentory, however, appears in the record. Tet there is no order taken against him for not filing it. Action in the court upon the estate appears to have been continued from term to term, with rare exceptions, until August, 1844, when an entry is made, “
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A. S. Walker, J.
The right of appellants to the land depends upon the validity of the grant of administration under which the sale was made at which Baker purchased.
The validity of the administration “depends upon the facts as they existed at the time the letters were granted.” Withers v. Patterson, 27 Tex., 501.
These facts can be ascertained from the record, supported by all presumptions which are indulged in support of the act as a judgment of a court of general jurisdiction. In other words, if jurisdiction is hot negatived by the record it cannot be attacked in a collateral proceeding. This rule is stated in Guilford v. Love, 49 Tex., 741, by the late chief justice of [633]*633the supreme court. The paragraph on the subject is as follows:
“Justice Bell, in discussing the question of what may be presumed in favor of the action of county courts, as exhibited in their orders or judgments, in the case of Withers v. Patterson, says: ‘The question presented in such cases is, how far is proof (which is wanting) to be supplied by presumption? The circumstances which would have authorized the court to act as it did 'act (within the limits of its jurisdiction being implied) are presumed to have existed.’ ‘But presumptions are indulged in the absence of proof and not against proof.’ 27 Tex., 496 (citing authorities). . . . In Freeman on Judgments, sec. 132, on Silence of Record, he says (quoting from 35 Cal., 460): “It is of no consequence whether the jurisdiction of the court affirmatively appears or not on the judgment roll; for if it does not, it will be conclusively presumed ’ (citing authorities).”
Taking this as a guide, let it be applied to the record. The statement given in connection with this opinion gives a full digest of the proceedings in the probate court to be examined.
The administration granted in 1838 upon the estate of Lorenzo De Zavalla, who died in 1836, to his son Lorenzo, was, beyond question, valid.
This original administration was extended by express order twice. The last order of extension was until January, 1841.
In 1841 a partition of lands of the estate was made, regular in all respects. In the partition proceedings a city lot in Galveston-and a labor of land on which the family resided in the junction of Buffalo Bayou and the San Jacinto river were reported as unsusceptible of partition. Certain personal property also was shown to the court to be Unsusceptible of division, and to be of a perishable nature. Orders of sale were made for sale of the lands on twelve months’ credit, as required by law. bio terms of sale were fixed in the order for the sale of the personal property.
[634]*634All the property ordered to be sold except the Galveston lot was reported as sold by the administrator to the September term, 1841." The aggregate amount of the sales was $3,997.50.
The report, there being but one, did not show the terms of sale. Under the law the land would be on twelve months’ credit.
It would have been within the power of the administrator, after making these sales for partition, to have divided the money realized among the distributees — one-half to the widow and one-tenth to each of his brothers and sisters, as the lands were to be divided. It would also be the duty of the probate court, in event of his failure to do so, to enforce a disbursement of these funds. The proceeds of sale added to the money reported on hand, $3,997.50+ $2,246.01= $6,243.51.
What became of this money is not disclosed. It is evident that the probate court had not relieved the administrator from his trust before his removal. On the minutes of the court, at its August term, 1842, about the time the sale notes would mature, is an entry, “ Continued,” applied to the administration. This may have been intended as an extension of time. At least it did not negative such extension.
January 2, 1843, application was made to the court by Fock, husband of the widow of the deceased, herself entitled to one-half interest in the estate, showing that the administrator had left the republic, and “ had been absent from the republic for more than twelve months,” “ and that the estate is suffering from neglect,” asking the removal of the former administrator and his own appointment as administrator de honis non.
This application was entertained. Citation against the administrator was published, and he was removed. At the same time Fock was appointed to the administration. This appointment was made February 27,1843. It does not appear from the record or otherwise that, at this time, any [635]*635of the estate had gone into possession of the heirs except the land partitioned (which -was one and a half leagues on right bank of San Jacinto, in Harris county).
There was, so far as the records of the administration showed, the Galveston city lot (ordered to be sold), the headright league and labor certificate unlocated, though an advance of $70 appears to have been paid a surveyor to secure its location, the money reported, and the sale notes or proceeds therefrom.
These subjects, or some of them, may have needed attention; some may have been suffering from neglect; the salé notes may have remained uncollected. The court, upon such showing, confided administration. It cannot be said that there was nothing to administer; that the money had been collected and paid to the administrator; or that the remaining property had in fact passed into the hands of the heirs.
Having an unsettled estate suffering from neglect, the court had jurisdiction and exercised it.
We concluded, therefore, that Dock’s appointment was valid.
If Dock’s appointment was valid, his administration would be a continuation of the control of the estate by the court. IBs trust character would continue until lost by the action in some way exercised of the court, or by his non-action as such, for so long a time, or under such circumstances, that the court would refuse or lose its power to control his acts.
It would exist so long as the court should recognize him as such, and while those interested in the estate would allow it. It was not necessary that his term of administration be expressly extended, there being no law so requiring it as a condition of the legality of his acts. While recognized as such by the court, and he remained in charge of the property, he would be in law and in fact the administrator.
The record is meager and at times obscure as to the acts of Dock in his administration. He was tardy in executing the bond, but it was executed and it was approved by the court.
[636]*636October, 1843, a complaint was exhibited against him by the county clerk representing “that the estate of L. De Za,valla has been open for several years, and of the fees of office a balance remains unpaid,” etc. "Upon this a citation was issued.,, The rule against him appears to have been discharged upon his payment of all the clerk’s costs. •
In an entry made at the March term, 1844, it appears that Fock had taken the statutory oath, and that letters had in fact issued. Appraisers were appointed. Ho in\Tentory, however, appears in the record. Tet there is no order taken against him for not filing it. Action in the court upon the estate appears to have been continued from term to term, with rare exceptions, until August, 1844, when an entry is made, “ By consent of parties this estate is dismissed from the docket until called up by parties in interest.” This was not a dismissal of Fock, nor did it relieve from his trust. Its effect may .have been to relieve the call of the estate from month to month for orders. Its terms negatived a removal, in the.provision that it could be replaced upon the docket for orders in course of further administration when necessary.
January 21, 1848, Fock applied for an order to sell the headright league and labor certificate, issued to the heirs for the support and education of the minors. At the March term thereafter, an order was made for its sale. Such sale was proper tinder probate act of 1846, art. 18, then in force. Continuances for account of sales were regularly entered until the January term, 1849, when citation was ordered requiring the return of such account. At the same term an order appears reciting that the records of the court “ in the matter of this estate showed that the costs accruing to the officers of court are due and unpaid.” Citation was ordered. Alias citations were returned served upon him March, 1849. This rule for costs never appears to have had final action.
At the October term, 1849, the record discloses, “ On motion it is ordered by the court that the case be placed upon the docket; and further ordered that the business of the estate be continued until next term.” Continuances were entered [637]*637for the three succeeding terms, December, 1849, January and February, 1850. March 12, 1850, Baker, the county clerk, filed his petition representing “ that the estate has been administered, all the property sold except the head-right of the deceased, and he is informed that all debts have been paid except one due your petitioner and officers of court for expenses of administration; . . . that the administrator of the estate, Fock, has lately died leaving petitioners debt unpaid; that it is the wish of the widow of the deceased that said debt should be paid, and that for this purpose an administrator be appointed,” asking Daws’ appointment.
Under the probate act of'1840, art. 21 of act, costs of court are recognized as debts to be paid out of the estate next after expenses of last sickness. So in the act of 1848, art. 78. They were charges under the act of 1846, art. 24. Costs being chargeable to the estate were certainly debts to be paid; in this instance only out of the unadministered assets.
At Fock’s death an order was pending against him to compel payment of costs. Early in his administration he had discharged a rule by paying the costs of the officer who wTas pressing it. The record, therefore, does not negative the existence of costs unpaid. There was in his hands, not sold nor passed from his possession to the heirs, the head-right certificate.- Debts and assets unadministered. So it appeared in the record. These facts were alleged in Baker’s application; being verified by the record, the right existed to continue the administration. If existing at Fock’s death, an equal right to its continuance remained in the probate court.
Again as to debts, besides the statutes cited, the administrator under our probate laws is a trustee for the heirs, etc.; his agency is upon the assets. His acts may impose charges for expenses or costs upon the property. Portis v. Cole, 11 Tex., 158. And the record showing costs existing, their non-existence or payment cannot be presumed, as was done in Duncan v. Veal, 49 Tex., 603. In such a case, and [638]*638where it appeared “that the estate had not been fully settled and distributed among the parties entitled thereto” (Frost v. Frost, 45 Tex., 342), the court held, “ whether it was absolutely essential that further administration should be had upon it, or whether it was for the interest of the heirs or creditors that the administration should be longer continued, certainly it cannot be said that it was not within the power and jurisdiction of the .court to grant letters de bonis non.to complete its full and final settlement.”
Given an administration legal in its inception, .it becomes immaterial to its validity whether it was wisely exercised.
That property was lost or squandered in the course of the administration is a ground of complaint against the administrator in the probate court, or in direct proceedings for the revision of such errors.
That an administration was not.formally extended did not affect its existence. Poor v. Boyce, 12 Tex., 449.
.Mor that so long a time elapsed between the death of the intestate and the grant of letters ds bonis non. Howard v. Bennett, 13 Tex., 314, 315.
Mor that there was an interval.-of several years between entries, .or evidence of acts as such. Burdett v. Silsbee, 15 Tex., 610, 616.
Mor that an estate was consumed by .costs and expenses, to the loss or want of benefit to the heirs. Kleinecke v. Woodward, 42 Tex., 311.
Mor is it believed that the sale under which Baker purchased was ineffectual.to pass the location with the certificate. Simpson v. Chapman, 45 Tex., 566.
Limitation would run against an effort to avoid the sale for fraud, if fraudulent acts appear or can be shown. The plea of stale demand was rightly interposed against the attack for fraud. Kleinecke v. Woodward, 42 Tex., 311; Pearson v. Burditt, 26 Tex., 172.
It is our opinion, therefore, that Daws’ administration, under which Baker purchased, was valid; that the objections to the proceedings antecedent to and in the sale and its confirmation were but irregularities, only available in a [639]*639direct attack, not to be available in the collateral; and that, as to any real or alleged fraud, even if it could be heard on a plea of not guilty in an action of trespass to try title, the lapse of time is so great that its availability as a defense is lost.
[Opinion delivered November 8, 1880.]
We, of course, are acting upon the record before us. Whatever the future researches in the records of the probate court may divulge, if anything, to exclude the court on the trial from according to the orders and decrees of the probate court the presumptions of regularity required in the absence of a negative on record, may be shown on the new trial consequent upon the reversal.
This opinion only decides that, as shown in the record, the jurisdiction of the court is not negatived as to the appointment of Daws; that the irregularities complained of, interposed at the time and in the manner urged below, do not vitiate the sale; and that the sale, if valid, passed also the location.
There was error in the judgment for plaintiffs, and for that the judgment should be reversed.
Reversed and remanded.