Appleby v. Tom

• Decision Date: 12 November 1942
• Docket Number: No. 4241.,4241.
• Citation: 170 S.W.2d 519
• Parties: APPLEBY v. TOM.
• Court: Texas Court of Appeals

170 S.W.2d 519

APPLEBY v. TOM.

No. 4241.

Court of Civil Appeals of Texas. El Paso.

November 12, 1942.

Rehearing Denied December 3, 1942.

Appeal from District Court, El Paso County; D. E. Mulcahy, Judge.

Certiorari proceeding by P. W. Appleby against Mary Rice Tom, individually and as administratrix of the estate of J. D. Tom, to have set aside and vacated an administration proceeding pending in the county probate court of El Paso County. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Lea & Edwards, of El Paso, for appellant.

Tom R. Files and R. A. D. Morton, both of El Paso, for appellee.

SUTTON, Justice.

This is an appeal from the Forty-first District Court of El Paso County.

The parties appear here in the same order as in the trial court and will be referred to as plaintiff and defendant.

This is a certiorari proceeding brought under the provisions of Art. 932, Vernon's R.C.S. The plaintiff sought to have set aside and vacated an administration proceeding pending in the County Probate Court of El Paso County on numerous grounds not necessary here to repeat. On a trial of the law questions arising on the pleadings the trial court dismissed plaintiff's suit, from which judgment this appeal has been perfected.

Defendant was appointed temporary administratrix of the estate of her deceased husband, J. D. Tom, June 5, 1941. The administration was subsequently made permanent. August 28, 1941, plaintiff sought to have the administration vacated by bill of review which the Probate Court denied December 3, 1941. On December 5, 1941, the plaintiff instituted this certiorari proceeding, which was dismissed, as aforesaid, and on the ground, among others, that the plaintiff has no interest in the estate of the deceased Tom as contemplated in Art. 932, supra.

Plaintiff has numerous assignments and points which he has briefed under three groupings. In his brief the plaintiff asserts the dominant and decisive issue is the question of interest. To this we agree.

Under the authority granted by the Probate Court of El Paso County the defendant here, as plaintiff, instituted a suit in New Mexico against plaintiff here to recover damages for the alleged negligent and wrongful death of her husband, claimed to have been caused by the plaintiff in New Mexico, where Tom died. It is undisputed that defendant here is the sole heir and next of kin of J. D. Tom, deceased. It is likewise undisputed that the estate consists solely of the alleged cause of action, and that the only interest the plaintiff has in the estate is as defendant in the New Mexico suit, hence, the question, Is that such an interest as is contemplated by Art. 932? Plaintiff contends it is, and relies primarily upon the case of Cooper v. Gulf, C. & S. F. Ry. Co., 41 Tex.Civ.App. 596, 93 S.W. 201, writ refused.

That case did not originate under the provisions of Art. 932, then in effect, but was, undoubtedly, an appeal under the provisions of Art. 2255, R.C.S.1895, Vernon's Ann.Civ.St. art. 3698, which gave the right of appeal to "any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court * * *." It is altogether true, as here contended, that the court in the Cooper case said, whether it was called upon to do so or not, that the defendant Railway Company had an interest in the estate such as would entitle it to maintain the suit. In the light of numerous constructions in subsequent decisions approved by the Supreme Court, we are inclined to the view the court did not have in mind the provisions of Art. 932.

Art. 3315, Vernon's Civil Statutes, uses these words: "Any person interested in an estate * * *." Art. 5534, same statutes, says: "Any person interested in any will * * *." These statutes have been before Texas courts numerous times and the language there used defined, and a "person interested" defined. Probably the first case and subsequent to the Cooper case is Pena y Vidaurri's Estate v. Bruni, Tex. Civ.App., 156 S.W. 315, 316, writ refused. There the court said: "The expression, `person interested,' as used in the statute, includes only him, who either absolutely or contingently is entitled to share in the estate or the proceeds thereof, as husband and wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor."

There is cited there the case of Chicago, B. & Q. Railway Co. v. Gould, 64 Iowa 343, 20 N.W. 464, 466. The court there had under consideration the petition of the Railway Company to revoke letters of administration in a situation very similar to the instant case, wherein the company had been sued by the administrator. The statute provided such a suit might be brought "by any person interested in the estate." Code 1882, § 2497. It was held the company had no such interest as is contemplated by the statute, and said: "The interest contemplated by the statute is a right to benefits from the estate which prompts the person to act for preserving its assets, increasing their value, and directing their disposition and appropriation. Surely, the statute does not in this provision contemplate one whose interest would be promoted in the destruction of the...