Allen v. Berkmier

• Decision Date: 08 October 1919
• Docket Number: (No. 1564.)
• Citation: 216 S.W. 647
• Parties: ALLEN et al. v. BERKMIER et al.
• Court: Texas Court of Appeals

Page 647

216 S.W. 647

ALLEN et al. v. BERKMIER et al.

(No. 1564.)

Court of Civil Appeals of Texas. Amarillo.

October 8, 1919.

On the Merits, October 29, 1919.

On Motion for Rehearing, December 3, 1919.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Suit by James B. Allen and others against Josephine Berkmier and others. Judgment for defendants, and plaintiffs appeal. Motion to strike out bills of exception sustained. Judgment affirmed.

Williams & Martin, of Plainview, for appellants.

P. B. Randolph, of Plainview, for appellees.

On Motion to Strike out Bills of Exception.

BOYCE, J.

It appears from the transcript that the term of the district court at which this case was tried adjourned on April 4, 1919. No order extending the time for filing bills of exception appears. Bill of exception No. 1 was filed on June 1, 1919, and bills Nos. 2 to 7 inclusive were filed on June 30, 1919. Appellee within 30 days after the filing of the transcript in this court has moved that said bills of exception be stricken from the record because not filed within the time prescribed by law. Under this state of facts the motion must be sustained. R. S. art. 2073; Criswell v. Robbins, 152 S. W. 210; Pearce v. Supreme Lodge, 190 S. W. 1156; Loeb v. Railway, 186 S. W. 379; Comm. v. Houston Oil Co., 171 S. W. 520; Rishworth v. Moss, 191 S. W. 850; Byrne v. Lumber Co., 198 S. W. 600; Camp v. Gourley, 201 S. W. 671; Pool v. Pierce-Fordyee Oil Ass'n, 209 S. W. 706.

On the Merits.

This suit was brought by appellants against appellees to recover and have partitioned to them a two-fifths interest in 320 acres of land in Floyd county. The land in question belonged to the community estate of James Allen and his wife, Anne Allen, and the appellants were entitled to recover a two-fifths interest therein through inheritance from the said decedents, unless they are precluded from denying the validity of an administrator's sale of such property, under which appellees claim the land. The facts in connection with the administrator's sale, on which the issue of estoppel arises, are, briefly, as follows:

James Allen, by his will, gave to his wife a life estate in all property owned by him, and provided that his said wife and one Samuel Wolfe should be joint executors of his will, and that upon the death of his wife the said Wolfe should continue as sole executor, and that all property remaining after the death of the said wife should be sold as soon as possible, and the proceeds distributed in cash among his legal heirs. The widow filed her acceptance under the will, but declined to act as executor, whereupon Samuel Wolfe was appointed sole executor; and later, upon his resignation, William M. Johnston was appointed administrator with the will annexed. It does not appear definitely when the said Anne Allen died, but it is evident that she was dead at the time of the administrator's sale, presently referred to. All of the parties resided in Ohio, where the administration proceedings were all had, and no administration proceedings were had in Texas; a certified copy of the will and its probate, together with the administrator's deed, being filed and recorded in the deed records of Floyd county. It was apparently assumed by the administrator and all the heirs that the administrator had the power under the terms of the will, and without any proceedings in the Texas courts, to sell the property in Texas. The Texas land was not thought to be of much value; no purchaser therefor could be found, and all of the heirs declared that they did not want it, and a considerable delay in the final settlement of the estate and distribution thereof was incurred by reason of this fact. The heirs finally agreed among themselves and with the administrator that, in order to secure a final settlement and distribution of the estate, the land should be sold to Joseph Allen and Mrs. Eberly, two of the heirs, at $1 per acre. Whereupon the administrator, acting as such, by deed dated June 4, 1897, conveyed the land to said parties at such price, and final settlement of the estate was thereafter had, including a distribution to each of the heirs of his proportionate interest in the funds realized from the sale of this land. The appellees claim through the said Joseph Allen and Mrs. Eberly, and the appellants claim through other heirs of the said James Allen and wife, who were parties to such proceeding and participated in the distribution of said funds. All of such heirs were at the time of age, and those through whom appellants claim were cognizant of, and parties to, the agreement under which the land was sold, expressing their preference to take their respective shares of said estate in money. The understanding between the parties which culminated in the sale in this way was arrived at by correspondence among themselves and with the administrator.

It is conceded that the administrator had no power to sell the property in Texas as he did, and we need not discuss such matter. But we are of the opinion that the appellants are estopped from denying the validity of the administrator's sale made under the circumstances stated. Grande v. Chaves, 15 Tex. 551; Ryan v. Maxey, 43 Tex. 195; Stafford v. Harris, 82 Tex. 178, 17 S. W. 530; Halbert v. Carroll, 25 S. W. 1102; Vineyard v. Heard, 167 S. W. 22; Whitaker v. Thayer, 38 Tex. Civ. App. 537, 86 S. W. 364.

In the case of Grande v. Chaves, supra, a sale was made by an administrator, acting as such, under a void administration proceeding. The administrator had been urged in letters from the heirs to sell the property, and also had a power of attorney from them to sell, and the proceeds of the sale were paid to such heirs. The following quotations from the opinion set forth the basis of the holding of the court in the case, to the effect that they were precluded from denying the validity of such sale:

"The controlling circumstance in this case, and which overreaches the question of the validity of the grant, or the sale made under its authority, is the fact that the plaintiffs, claiming this property by heirship, were exceedingly eager for the sale of the land. * * * Their letters to this effect would preclude them, in equity, from disturbing the rights of one who purchased from their agent, who did the very act they requested and authorized him to perform, although he may have been also acting under another power, which was invalid and insufficient to support his act. * * * Upon the whole, we believe the plaintiffs are precluded by their acts from impeaching the title of the purchasers. They entreated and urged the sale, and they have received the proceeds. Their acts show such acquiescence as to amount to a ratification, and they cannot be permitted to disturb the rights of purchasers under sales fairly made, and with their consent, and from which they received the benefit."

In the case of Ryan v. Maxey, supra, the heirs sought to recover property sold by the guardian of the deceased after the ward's death, in pursuance to an order of the court had in the guardianship proceeding. The claimants in such case were active in procuring the sale, and received the benefits thereof, and it was held that, though the court may have been without jurisdiction to order the sale—a point which was not decided— yet such claimants, by reason of such facts, were estopped from denying such power. The gist of the holding in the case is expressed in these words:

"The evidence is satisfactory that the parties were not merely passively consenting to the sale, but that they were active agents in procuring it to be ordered. In truth, the court and the guardian may be regarded as their agents in making the sale."

Following these early cases by the Supreme Court, it has been held in a number of later cases, which we have cited, that heirs, who with knowledge received the proceeds of sales of property made by an administrator of an estate in which they are interested, thereby ratified such sales, and are estopped from thereafter denying their validity, and this seems to be the holding generally in other jurisdictions. Deford v. Mercer, 24 Iowa, 118, 92 Am. Dec. 460; Smith v. Warden, 19 Pa. 424; Crane v. Lowe, 59 Kan. 606, 54 Pac. 666; Cadematori v. Ganger, 160 Mo. 352, 61 S. W. 195; Meddis v. Kenney, 176 Mo. 200, 75 S. W. 633, 98 Am. St. Rep. 496; Favill...