¶1Counsel for appellants insists that the surviving husband or wife, who takes charge of the community estate under the statute, cannot lawfully pay any claim against the estate, unless it has been allowed and approved.
¶2We cannot assent to this proposition. The survivor occupies a position like that of an independent executor, and the allowance and approval of a claim in such a case does not give it any superiority over other claims of the same class. McLane v. Belvin, 47 Tex., 493.
¶3But the presentation and allowance of the claim had one effect, at least. It informed Mrs. Taylor of its existence as a valid claim, and it was allowed by her as such, before she had made any considerable progress in the settlement of the estate. And when this is considered, in connection with the further fact that Mrs. Taylor had filed an inventory of property amounting to nearly $10,000, and a schedule of indebtedness amounting to less than $1,500, it is reasonable to suppose that the creditor may thus have been thrown off his guard, and rendered less vigilant in pressing his claim for payment.
¶4The condition of Mrs. Taylor’s bond, with which we are now concerned, was that she should “faithfully administer the estate.” Pasch. Dig., art. 5494.
¶5One of her duties in this administration was to pay the debts of the community, to the extent of the common property. And if the estate was insolvent, it would seem, in analogy to an ordinary administration, that she should pay them pro rata. To pay out all the assets to one creditor, or to one class of creditors, and send others away empty, would hardly comport with her duty to “faithfully administer the estate.”
¶6It was held in Green v. Raymond, 58 Tex., 80, that where a creditor failed to present his claim until the surviving wife had exhausted the property in the payment of debts, he could not hold her and her sureties responsible upon the bond.
¶7But in this case the claim had been promptly presented, and upon the trial it was admitted to be a just claim against the estate.
¶8In our opinion the plaintiffs are entitled to have their claim paid pro rata, and, as this was not done, the sureties upon the bond are liable to that extent.
¶9The judgment should be reversed and the cause remanded.
¶10Reversed and remanded.
¶11[Opinion adopted November 13, 1883.]