Butler v. Summers, A-3643
| Decision Date | 12 November 1952 |
| Docket Number | No. A-3643,A-3643 |
| Parties | BUTLER et al. v. SUMMERS. |
| Court | Texas Supreme Court |
Burt Barr and J. Lee Zumwalt, Dallas, for petitioners.
Dee Brown Walker, Dallas, for respondent.
This litigation began in the county probate court in the estate of J. A. Summers, deceased, of which respondent, Lena B. Summers, his widow, is administratrix.
On Oct. 10, 1950, respondent seasonably applied to the court for a widow's allowance for one year following the death of her husband, alleging that she and deceased had no children; that there was no homestead or other exemptions to be set aside to her; that $3,000 would be a reasonable allowance. On the same day the court allowed her $2,400 and ordered her 'to pay the same in accordance with law.'
In the inventory and appraisement executed on Aug. 20, 1950, respondent listed as separate property of the deceased '10 acres of land and house in 1 Wylie Survey, Dallas County, Texas' of the value of $10,000. As community property she showed: 'one acre of land in 1 Wylie Survey, Dallas County Texas' valued at $100; 1 automobile, valued at $500; 'personal effects worth $100; cash in bank, $88.00; cash in her hands in the amount of $31.00.' As claims due the estate she showed $198 due by deceased's 'co-signer' of a note which the deceased had paid. As claims due by the estate she listed a balance of $6,800 due one Farr and secured by lien on the above described 10 acres of land.
By a petition to sell real estate filed Sept. 13, 1950, respondent alleged that it was 'necessary to sell a part of the real estate to pay the legal charges and claims against the said estate, and she thinks that the tracts of land hereinafter mentioned will be sufficient for that purpose.' Then she prayed for an order to sell the 10 acres and the 1 acre described in the inventory and appraisement. She recited that the 10-acre tract 'is subject to the balance of a note by J. A. Summers to E. P. Farr in the sum of $7,000, upon which there exists a balance at this time of approximately $6,800, and your petitioner prays that such tract of land be sold subject to the above mentioned lien and note.' She alleged that the 1-acre tract had no lien against it, and asked that it be sold 'free of all indebtedness.'
With this petition she tendered an exhibit showing all claims approved by her, established by suit, or rejected, estimated expenses of administration, and property remaining on hand liable for payment of such claims. She recited that no 'formal' claims had been filed but that she had paid $180 as principal and interest payments due on the Farr note; that no claims had been rejected; that claims pending but unpaid were $10 due for her bond as administratrix; $61 'advanced by administratrix'; $500 as 'estimated expenses of administration,' and $6,800 balance due on the Farr note.
After service of notice of this application by posting, the probate court, on Oct. 3, 1950, found necessity for sale and ordered 'that the above described tracts or parcels of land be sold by Lena B. Summers, Administratrix of said estate, at private sale for cash, subject, however, to all outstanding indebtedness against said tracts.'
The next day respondent filed a report that in obedience to this order of sale she had sold the two tracts to one Walker for $3,178 cash 'and the said James M. Walker having agreed to assume the unpaid balance against Tract No. 1 in the present sum of $6,822.00.'
On Oct. 10, 1950, the probate court entered an order confirming the sale and authorizing respondent to execute a conveyance to Walker upon his compliance with the terms described in the report of sale.
On Jan. 13, 1951, Mrs. Mary M. Butler et al., petitioners, filed in the probate court a petition alleging that they were brothers and sisters of the deceased and that they and respondent constituted all the heirs of the deceased; that, therefore, petitioners inherited a half interest in all real estate owned by the deceased; that the 10 acres of land described by respondent in the inventory and appraisement as separate property was the separate property of deceased and constituted his homestead; that respondent received from Walker the $3,178 paid by him as part consideration of sale of the 11 acres of land by her as administratrix; that they had no notice or knowledge of any of the orders in the sale proceedings or of the application for, or authorization of, the widow's allowance; that as soon as they learned of the allowance they filed this suit; that respondent's application for allowance did not allege that she had no separate property, hence should be set aside; that in no event should an allowance be paid out of the money received from the sale of the homestead; that upon sale of the homestead they became entitled to be paid half of the cash payment, the homestead not being subject to any of the indebtedness of the deceased except the lien debt assumed by Walker; that the homestead could not legally be sold and the proceeds used to pay the widow's allowance, hence the order of allowance was 'wholly void in so far as any part of the proceeds from the sale of the homestead is concerned.' Their prayer was 'that the allowance heretofore made to the said Lena B. Summers be set aside and that no part of the money received from the sale of the homestead shall be used in making payment of any allowance to' her.
Respondent pleaded, among other things, a general denial and specially 'that it was entirely within the court's jurisdiction to grant her a widow's allowance as provided by law and that the same could be paid out of any property of the deceased and is a claim on the estate prior to the claim of any heir' and 'since the Court has heretofore entered an order granting her a widow's allowance, the Court does not have jurisdiction to reopen the matter and have a rehearing, and that the order granting a widow's allowance is res judicata.'
After a hearing the probate court refused petitioner's prayer 'to set aside the widow's allowance.'
After petitioners appealed to the district court respondent filed a motion for summary judgment on the ground that petitioners' pleadings raised no justiciable issue, because the order granting the widow's allowance was entered on Oct. 10, 1950, whereas petitioners' petition was not filed in the probate court until Jan. 13, 1951, which was more than the statutory period of 15 days within which appeal may be had from an order of the probate court. They asserted, also, that since the petition was not filed during the term of court that the order for widow's allowance was filed, the district court was without jurisdiction.
In answer to this motion petitioners alleged that the widow's allowance was to be paid out of the funds received from the sale of the homestead of...
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Swilley v. Hughes, B--3118
...all of the cases were decided before the effective date of the Texas Rules of Civil Procedure in 1941. We do not read Butler v. Summers, 151 Tex. 618, 253 S.W.2d 418 (1952), as making a similar We do not consider the cited cases as any longer authoritative on the pleading question. Rule 91,......
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Mallou v. Payne & Vendig, s. 05-87-00246-C
...court is therefore affirmed. The Griffin and Cline opinions have been cited with approval numerous times, e.g., Butler v. Summers, 151 Tex. 618, 253 S.W.2d 418, 421 (1952); Williams v. Sinclair Prairie Oil Co., 247 S.W.2d 422, 426 (Tex.Civ.App.--Texarkana 1952, no writ); Aman v. Cox, 164 S.......
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Grant v. Marshall, 3193
...such as American Bonding Co. v. Logan, 106 Tex. 306, 166 S.W. 1132, Hoefling v. Hoefling, 106 Tex. 350, 167 S.W. 210 and Butler v. Summers, 151 Tex. 618, 253 S.W.2d 418, did not involve the right of a surviving spouse to sell the community homestead for the purpose of paying community debts......
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In re Estate of Nielsen
...and last sickness of deceased." Butler v. Summers, 248 S.W.2d 227, 230 (Tex. Civ. App.—Dallas 1952), rev'd on other grounds, 151 Tex. 618, 253 S.W.2d 418 (1952) (quoting former Article 3483).In Pace, the administrator of the decedent's estate argued that in an estate in which the community ......