Carson v. Carson's Estate

• Citation: 601 S.W.2d 171
• Decision Date: 29 May 1980
• Docket Number: No. 1631,1631
• Parties: Loyd A. CARSON, Jr., Appellant, v. ESTATE of Halsey V. CARSON, Deceased, Marie I. Johnson, Administrator, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 171

601 S.W.2d 171

Loyd A. CARSON, Jr., Appellant, v. ESTATE of Halsey V. CARSON, Deceased, Marie I. Johnson, Administrator, Appellee.

No. 1631.

Court of Civil Appeals of Texas, Corpus Christi.

May 29, 1980.

Rehearing Denied June 30, 1980.

R. Mayo Davidson, of Davidson & Davidson, Houston, for appellant.

H. William Schneider, Duckett, Bouligny & Collins, El Campo, for appellee.

OPINION

BISSETT, Justice.

This is an appeal by an heir at law of a decedent from an order of the probate court denying his petition for a statutory bill of review. Involved is an order of sale of all the real estate (960 acres of land) owned by the decedent. We affirm.

On June 5, 1979, Marie I. Johnson, the administratrix of the Halsey V. Carson Estate, hereinafter called "respondent," applied to the Probate Court of Wharton County, Texas, for authority to sell all of the real estate belonging to the decedent. Attached to said application was a document denominated "Condition of the Estate," which incorporated by reference the First Annual Account. The Account listed all claims due and owing by the Estate. A hearing was duly held on the application on June 14, 1979. Loyd A. Carson, Jr., an interested party and hereinafter called "petitioner," in his waiver of citation, stated:

"I agree that all 960 acres of the Carson Estate land should be sold at public or private sale."

He was present at the hearing.

On July 3, 1979, the probate court signed an order for the sale, at public or private sale, of all the land owned by the decedent, consisting of several tracts of land which totalled approximately 960 acres. The following findings appear in the order of sale:

" . . . the sale is necessary and advisable in order to pay expenses of administration, Federal Estate Taxes, the indebtedness to Union State Bank of East Bernard, Texas, secured by Deed of Trust lien, and other debts against the Estate which might exist, and to accomplish a fair and equitable distribution of the Estate to the seven heirs, as the land is of unequal value and not susceptible to a fair and equitable partition in land among the heirs."

Report of Sale was duly filed by the respondent.

The record consists solely of the transcript. There is neither a statement of facts prepared in accordance with Rule 377, T.R.C.P., nor an agreed statement prepared in accordance with Rule 378, T.R.C.P., before this Court. Formal findings of fact were neither requested nor filed. The judgment recites that the court "heard the evidence in support of the application." Under such circumstances, we must presume that the court found every fact in issue necessary to sustain its judgment. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79 (Tex.Sup.1955); Armenta v. Nussbaum, 519 S.W.2d 673 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.).

It is only in an exceptional case, i. e., where fundamental error is presented, that an appellant is entitled to a reversal of the trial court's judgment in the absence of a statement of facts. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600 (Tex.Sup.1953). This is not such an exceptional case. Fundamental error is not presented by the record in this appeal. Therefore, every reasonable presumption consistent with the record will be indulged in favor of the correctness of the judgment rendered in this case by the court. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649 (Tex.Comm'n App.1935, opinion adopted).

Tex.Prob.Code Ann. § 31 (1956), in pertinent part, provides that any interested person may, by bill of review filed in the court in which probate proceedings are held, have any decision, order or judgment rendered by the probate court revised and corrected on showing error therein. The petition falls within the purview of Section 31.

Petitioner presents six points of error. He contends that the order of sale should be set aside because: 1) the sale erroneously permits the sale of real property for the purpose of paying debts and for the purpose of partition and distribution long before the administration of the Estate is complete; 2) personal property should have been sold before real property was sold; 3) the order failed to select the specific real property, which would be most advantageous to the Estate, to be sold; 4) no claims had been filed with the administratrix, or allowed by her, prior to the date the order of sale was signed by the probate judge; 5) the order of sale authorized the sale of minerals along with the surface of the subject real property when "the minerals were obviously capable of severance from the surface and partition in kind"; and 6) the order of sale erroneously permits...