Commander v. Bryan

• Decision Date: 23 December 1938
• Docket Number: No. 13796.,13796.
• Citation: 123 S.W.2d 1008
• Parties: COMMANDER v. BRYAN et al.
• Court: Texas Court of Appeals

123 S.W.2d 1008

COMMANDER v.BRYAN et al.

No. 13796.

Court of Civil Appeals of Texas. Fort Worth.

December 23, 1938.

Rehearing Denied January 27, 1939.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit by Dorris Commander and others against Morgan Bryan and others, individually, and as independent executors of John B. Laneri, deceased, to recover an annuity devised by will.From a judgment for defendants, the named plaintiff appeals.

Reversed and remanded.

C. H. Milliken and McLeod A. Greathouse, both of Fort Worth, for appellant.

Bryan, Stone, Wade & Agerton, of Fort Worth, for appellees.

DUNKLIN, Chief Justice.

Mrs. Nannie Graves Laneri, wife of John B. Laneri, died on December 30th, 1918, leaving her last will and testament, embodying the following provisions:

"February 23, 1915.

"It is my will if I should die before my husband that he shall have my interest in our estate to use for his own benefit and for charitable purposes as he may desire as long as he lives.

"It is my wish that he may give to my niece, Mrs. Joe Commander, twenty-five dollars per month to be used for herself and little daughter, Dorris. * * *

"It is my will that Mrs. Commander and daughter, Dorris, continue to receive twenty-five dollars per month from our estate as long as they may live. * * *

"After my husband's death I will that my home and my interest in our estate be used for the benefit of ambitious boys and girls to prepare them to earn a living.All previous wills are null and void."

The will was duly probated in the county court of Tarrant County on March 6th, 1919.No executor was appointed by the testatrix.John B. Laneri, her surviving husband, was appointed administrator of the estate with the will annexed, and on March 19th, 1919, he qualified by giving and filing the required bond and statutory oath.On April 3rd, 1919, he filed an inventory and appraisement of the estate, showing the value of the assets belonging thereto to be $48,046.33.On April 11th, 1919, Joe Commander applied to the same court for letters of guardianship of the estate of Dorris Commander, his minor child named in the will.The application was granted, and on May 14th, 1919, he qualified as such guardian by filing the required bond and oath.On the same day he filed an inventory and appraisement of the estate of the minor, consisting solely of the $12.50 monthly installments provided for in the will, to continue throughout the life of the minor; said sum being one-half of the $25 bequeathed to the minor and her mother, Mrs. Joe Commander, jointly.As appears from the will, Mrs. Joe Commander was the same person as Ada Belle Commander.

On May 20th, 1919, Joe Commander, as guardian, filed in the county court an application for authority to accept an offer made by John B. Laneri, as administrator of the estate of Mrs. Nannie Graves Laneri, deceased, of sixteen shares of the capital stock in Fakes & Company, a private corporation, engaged in the furniture business, in full settlement and satisfaction of the bequest shown in the will in favor of the minor.On the same day the court made the following order:

"No. 5607.Estate of Dorris Commander, Minor.In the Probate Court of Tarrant County, Texas.May 20, 1919.

"This day came regularly on for hearing application of Joe Commander, guardian of the Estate of said minor, for authority to settle claim for monthly bequest of $12.50 of this Estate against the Estate of Mrs. Nannie Graves Laneri.After hearing the evidence and the law, the court is of the opinion that said application should be granted; that it is for the best interest of this Estate to accept the offer of John B. Laneri to give to this Estate 16 shares of the capital stock of the corporation known as Fakes & Company in Ft. Worth, and that it is for the best interest of this estate to accept said stock and to have it all at this time rather than to have the claim for $12.50 per month against the said estate.

"Wherefore, it is considered, adjudged and ordered by this court that the said Joe Commander, guardian, be and he is hereby authorized and empowered to accept said shares of stock in full settlement of any and all claims that this estate has against the estate of said Mrs. Nannie Graves Laneri, and that on receipt of said certificate that all liability existing in favor of this estate against the estate of the said Nannie Graves Laneri be held and considered as extinguished and in all respects paid and released."

The exchange so authorized was duly consummated by transfer and delivery to the guardian of the sixteen shares of capital stock in Fakes & Company, and the execution and delivery by him to said administrator of an instrument in writing by the terms of which the estate of said Mrs. Nannie Graves Laneri, deceased, was released of any liability to said minor for further payments of the bequest in her favor.

On January 14th, 1930, John B. Laneri, as administrator, filed in the county court, in cause No. 5532, same being the docket number of the proceedings in the estate of Nannie Graves Laneri, deceased, a report showing settlement of certain bequests in her will, with a prayer that the court inquire into those transactions and enter order affirming the same.Included in the report was the following:

"This Administrator would further show to the court that he has commuted and settled the annuity provided for in the will to Mrs. Joe Commander and little daughter, Dorris Commander, same being an annuity for life of $25 per month to the two of them; that said settlement as to Dorris Commander was duly authorized in cause No. 5607, on May 19, 1919, which was in the guardianship proceedings, and has therefore made full composition and settlement of the said annuity for Dorris Commander; that he has settled the said annuity with Mrs. Ada Belle Commander by composition with her."

On January 20th, 1930, the court entered an order approving the report, and the order included the following:

"It is further ordered, adjudged and decreed that the settlements made with the guardian of Dorris Commander and the commutation of the annuity settled upon Mrs. Joe Commander be and the same are hereby especially approved as being to the best interest of the estate and also a fair settlement with each and both Dorris Commander and Mrs. Joe Commander."

On July 22nd, 1930, the court approved the final account of John B. Laneri, as such administrator, and ordered the administration closed.That order of the court embodies the following:

"On this 22nd day of July, 1930, came on to be considered in the administration with will annexed of the estate of Mrs. Nannie Graves Laneri, the final account of John B. Laneri, administrator, with the will annexed of said estate; and it appearing to the court that due, proper and legal notice has been given and made in all respects, as required by law of the filing thereof, and the court so finds, after which the court proceeded to examine the said final account and the vouchers accompanying the same and to hear all exceptions and objections thereto and the evidence in support of and against the account, and having fully considered the same, the court finds that all debts, obligations and bequests known to exist against the estate of Mrs. Nannie Graves Laneri have been paid so far as the assets of the said estate in the hands of your administrator, with the will annexed, will permit.

"The court further finding that all property belonging to said estate has been under orders and decrees of this court sold and finally disposed of except the following described property still on hand and in possession of said administrator, towit:"

Then follows a description of certain vendor's lien notes and real estate found to belong to the community estate of the deceased and administrator, and vesting title in the administrator to his one-half thereof, by reason of his community interest, and to the other half, under the terms of the will of the deceased.

On February 14th, 1935, John B. Laneri died, leaving a last will and testament, which was duly probated in the county court of Tarrant County, on March 5th, 1935, and in which Louis Laneri, Mrs. Elizabeth Laneri and Morgan Bryan were named as independent executors, and they duly qualified to act as such.By that will, $500 was bequeathed to Dorris Commander.

On October 25th, 1935, Dorris Commander, having reached the age of her majority, filed in the District Court of Tarrant County for the 48th Judicial District a petition for a writ of certiorari to bring up for review by that court the orders of the county court authorizing Joe Commander, as guardian of the estate of Dorris Commander, to accept the sixteen shares of stock in Fakes & Company, in full settlement and satisfaction of the annuity bequeathed to his ward by the will of Mrs. Nannie Graves Laneri.

In the petition, those orders of the county court were attacked as void for lack of jurisdiction and power of the county court, in that the exchange in question did not come within any of the classes of investments authorized by statutes in guardianship proceedings.With further allegations that the stock so acquired by the guardian, and eight other shares issued as a bonus thereon, are now worthless.

The writ of certiorari was granted and in due course, after transcript of the proceedings in the county court had been filed, the District Court sustained a general demurrer presented by the executors of the estate of John B. Laneri, deceased, who were made defendants in the proceedings, and dismissed the petition.Plaintiff excepted to that ruling and gave notice of appeal to the Court of Civil Appeals, but never prosecuted an appeal, or writ of error, from that ruling.

This suit was instituted by Dorris Commander and Ada Belle Commander, joined by her husband, Joe Commander, against Louis Laneri, Mrs. Elizabeth Laneri and Morgan Bryan, individually and as independent ...