Bailey v. Bailey, 2789.
| Court | Court of Appeals of Texas |
| Writing for the Court | Tirey |
| Citation | 212 S.W.2d 189 |
| Parties | BAILEY v. BAILEY. |
| Docket Number | No. 2789.,2789. |
| Decision Date | 20 May 1948 |
Page 189
v.
BAILEY.
Appeal from District Court, Hill County; Frank G. McDonald, Judge.
Proceeding in the matter of the estate of James L. Bailey and Mrs. Essie Bailey, wherein Boyd Bailey, executor, in his final account, listed George Ellis Bailey as a debtor to the estate. From a judgment decreeing that the executor should deduct $1,222 from a share of the personalty bequeathed to George Ellis Bailey, George Ellis Bailey appeals.
Judgment affirmed in part and reversed and rendered in part.
Crawford C. Martin, of Hillsboro, for appellant.
M. S. Wood and John Abney, both of Hillsboro, for appellee.
TIREY, Justice.
This is an appeal from the judgment of the district court approving the final account of the independent executor without bond of the joint will of James L. Bailey and Mrs. Essie Bailey (heretofore filed in and approved by the County court, which final account, among other things, set out that George Ellis Bailey was indebted to the estate in the amount of $1222.00). The judgment of the district court decreed in effect that the independent executor shall deduct $1222.00 from the share of the personalty bequeathed to George Ellis Bailey. The case was tried before the court without a jury and upon the request of appellant the trial court filed findings of fact and conclusions of law. The pertinent parts are:
"1. On November 27, 1944, James L. Bailey and his wife, Mrs. Essie Bailey, executed a joint will, by which they undertook to dispose of their entire estate (less certain realty which was devised in specific tracts to each of the nine children and another specific tract to the heirs of a deceased child) by each of them leaving
Page 190
his or her respective share to the survivor for life, and after the death of the survivor to each of nine children, and the heirs of a deceased child, in ten equal shares.
"2. James L. Bailey died in December 1944, after which the will was probated and Mrs. Essie Bailey qualified as independent executrix.
"3. Mrs. Essie Bailey died March 31, 1946, after which the will was again probated as her will by the proponent, Boyd Bailey, who qualified as independent executor.
"6. On February 16, 1946, Mrs. Essie Bailey signed a check for $1220.00, payable to the opponent, George Ellis Bailey, which check was presented for payment and paid to the said George Ellis Bailey, who used same to pay a personal obligation. No part of said $1220.00 has ever been paid back to Mrs. Essie Bailey or her estate.
"7. The executor held his final account wherein the $1220.00 is set up as a charge against George Ellis Bailey, to which there is also added $2.00 due the estate for a cot purchased by the opponent from the executor, the total charge against George Ellis Bailey being $1222.00. The final account was approved by the County Court, from which order the opponent, George Ellis Bailey, has appealed to this court."
The court concluded as a matter of law:
"1. Mrs. Essie Bailey, by her acceptance of the will and qualifying as independent executrix, became bound by all the provisions of the will, and all funds received by her under the provisions of the will were likewise bound by said provisions, which required George Ellis Bailey to share equally in the distribution of said funds, and Mrs. Essie Bailey was without power to give any of said funds to George Ellis Bailey.
"2. The $1220.00 obtained by George Ellis Bailey being a portion of the trust fund,...
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