Bevill v. Young, 13290.
| Decision Date | 04 December 1942 |
| Docket Number | No. 13290.,13290. |
| Citation | 167 S.W.2d 573 |
| Parties | BEVILL v. YOUNG et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Action by Frank W. Bevill against Harold H. Young, administrator of the estate of Paul Henry Bevill, deceased, and another to recover a portion of plaintiff's distributive share of decedent's estate erroneously paid by administrator as fee to attorney appointed to represent plaintiff in the probate of such estate while plaintiff occupied status of missing heir, and for other relief. From a judgment on an instructed verdict for defendants, plaintiff appeals.
Reversed and rendered.
Alexander D. McNabb, of Dallas, for appellant.
Elihu E. Berwald and Hawkins Golden, both of Dallas, for appellees.
The matters here involved have been the subject of two previous appeals, Bevill v. Rosenfield, Tex.Civ.App., 113 S.W.2d 340; Rosenfield v. Bevill, Tex.Civ.App., 143 S. W.2d 414; and the material facts of those cases are referred to for brevity. The effect of prior litigation was to declare void the appointment by the Probate Court of Max R. Rosenfield as attorney for Frank Bevill, an admittedly missing heir in the will proceedings then pending in the Dallas County Probate Court, styled "In Re Estate of Paul Henry Bevill, Deceased." Harold Young, administrator of the estate, had paid to Rosenfield, out of Frank Bevill's portion, an $800 attorney's fee, pursuant to said appointment and probate order of June 20, 1934; and this suit was filed against Administrator Young and his bondman, Fidelity & Deposit Company of Maryland, seeking recovery of above amount, together with the damages provided by Art. 3626, R.S., of 10% per month; or a total claim in principal and accrued damages of $5,360. Upon a trial, and when plaintiff Bevill had rested his case, defendants' motion for instructed verdict was sustained and the jury thereby required to find for defendants; and appellant's points of error are predicated on the subsequent adverse judgment.
The void order of appointment recited in the first appeal (113 S.W.2d 340) was made before the decree of June 20, 1934, under which the $800 was erroneously paid by the administrator to Rosenfield; said last named probate order reading, in material part: "It further appearing to the court that each of the children of Paul Henry Bevill under the written agreement above referred to, is to receive the sum of $1500.00, it is the further order of the court that said sum of money be paid to each of them, and the said Harold H. Young, Administrator, is hereby ordered to pay over to each of said children the sum of $1500.00 each, deducting from the amounts to be paid to Frank Bevill and Earnest Bevill, the attorney's fees heretofore allowed."
The second appeal simply upheld the trial court in holding void and of no effect, the appointment of attorney and all parts of above quoted judgment, authorizing payment of the $800 attorney's fee; and the deduction of said amount from Frank Bevill's share in his father's estate.
It is principally contended by appellees that, after striking from the quoted order all reference to Rosenfield and attorney allowance, the remainder of such 1934 order nowhere authorizes the Administrator to pay $800 to Bevill as heir; hence, is an insufficient predicate for this suit seeking to recover the amount and statutory penalty.
Another portion of this 1934 probate judgment not affected by the previous appeals, provided that "Said Harold H. Young, Administrator, is hereby ordered to pay over to each of said children the sum of $1500.00"; and, following the second appeal, the administrator obviously knew that as to Frank Bevill, the aforesaid judgment had not been fully performed. It was likewise apparent to the administrator that, perforce of the unauthorized payment of attorney's fees, plaintiff Bevill lacked $800 receiving his full distributive share. It is only the valid parts of this order that plaintiff is here seeking to enforce, and said sections are sufficient in purpose and effect to warrant the present suit; for "a judgment may be void in part and valid in part, depending upon the extent to which jurisdiction is acquired." 25 Tex.Jur., Judgments, § 255, p. 695; Buie-Crawford Co. v. Cleburne Nat. Bank, Tex.Civ.App., 111 S.W.2d 830. The features of the order relating to attorney's fees were in excess of the court's powers and may be disregarded; having no effect on the remaining valid provisions requiring payment of $1,500 to each heir, including plaintiff; Williams v. Cass County, Tex.Civ.App., 147 S.W.2d 588.
The opinion of this Court in Rosenfield v. Bevill, 143 S.W.2d 414, supra,...
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