Cook v. Wilmeth

• Decision Date: 23 October 1942
• Docket Number: No. 2299.,2299.
• Citation: 166 S.W.2d 359
• Parties: COOK v. WILMETH et al.
• Court: Texas Court of Appeals

166 S.W.2d 359

COOK v. WILMETH et al.

No. 2299.

Court of Civil Appeals of Texas. Eastland.

October 23, 1942.

Rehearing Denied December 4, 1942.

Appeal from District Court, Scurry County; A. S. Mauzey, Judge.

Suit by Warren S. Cook, administrator de bonis non of the estate of A. C. Wilmeth, deceased, and as "next friend" of Mary E. Wilmeth, deceased's widow, against Lex C. Wilmeth and others to require the defendants as former administrators of the estate of A. C. Wilmeth, deceased, to make an accounting. Trial to the court, and from judgment for defendants, plaintiff appeals.

Affirmed.

Harry R. Bondies, of Sweetwater, for appellant.

Hamner, Ponder & Neblett and Mays & Perkins, all of Sweetwater, for appellees.

GRISSOM, Justice.

Warren S. Cook, alleging that he was "acting as administrator de Bonis Non herein, now appearing as such administrator and as next friend of Mary E. Wilmeth, widow and principal devisee of A. C. Wilmeth, deceased, duly authorized thereunto in such regard" filed this suit in the county court of Scurry County against Harrie Winston, Lex C. Wilmeth and the National Surety Corporation. A general demurrer to plaintiff's petition was sustained by the county court and the plaintiff refusing to amend, the case was dismissed and plaintiff appealed to the district court prior to September 1, 1941. Plaintiff filed an amended petition in the district court, his allegation as to the capacity in which he brought the suit was retained in the amended petition and was as heretofore quoted. Plaintiff alleged that in 1932 Winston and Wilmeth were appointed and qualified as administrators of the estate of A. C. Wilmeth, deceased, in cause No. 703 on the probate docket of Scurry County. That they executed a bond as such administrators, with National Surety Company as the surety on said bond; that National Surety Corporation, its successor, assumed liability under said bond as of date May 1, 1933. Plaintiff alleged that said administrators had never been discharged as such, but that on the 5th day of December, 1936, they filed a petition in said court to resign, along with "a separate purported final account filed by each of them, which said two purported accounts were each on the 29th day of December, 1936, approved by the County Court * * *". That on December 30, 1936, plaintiff was appointed administrator de bonis non. That from November, 1932, to December, 1936, Winston and Wilmeth had actual charge, control, and possession of the properties of said estate; that their possession and control was "joint, several and mutual", and their liabilities and responsibilities were "joint and several." That said administrators filed three joint purported annual accounts. Plaintiff, then, at great length, attacked the annual accounts, alleging, among other things, that they were not complete and incorrect; that their expense accounts were not in compliance with Art. 3692; that the accounts did not show any authority to rent the real estate, and alleged that authority was not obtained. That notice of the filing of the annual accounts was not given. That the annual accounts, except one filed January 21, 1936, "were all approved by this said probate court." That said last mentioned account was not itemized so as to show the amounts of rent paid on the property nor the time covered. That in said last annual account the disbursements set forth therein were not itemized and no vouchers accompanied said annual account. Plaintiff alleged that, therefore, said annual accounts did not constitute any part of the record in this case and could not be referred to in the final accounts. That plaintiff "objects to each and every disbursement of funds belonging to this estate as shown in said three purported annual accounts." That the administrators' "so-called" final accounts were sworn to separately, contained conflicting recitals and "neither could be audited and settled through its own recitals and that of the other report, so as to show the respective rights and duties of said Defendants with respect to said estate * * *". That Wilmeth's final account stated that he had exclusive management of the buildings and the leasing and collection of rentals therefrom that said statement was not "entirely correct, and that both of said defendants on occasion attended to the leasing of said buildings and the collection of rents thereon", but that if plaintiff be mistaken, that each of said defendants had full knowledge of and acquiesced in the conduct of the other with reference thereto.

Plaintiff alleged (1) that, as shown by the final account of Wilmeth, defendants had wrongfully retained out of the rents collected $1,369.21. (2) That because of said defendant administrators' failure to obtain authority of the court to rent the real estate defendants "owe said estate for the reasonable and agreed rental value of said properties, due, owing and not collected of tenants to whom they rented said properties, without taking note or security therefor, the sum of $2,079.50", as shown by Wilmeth's final account. (3) That, while it was not revealed by the final accounts, it was a fact that with the knowledge, assent and acquiescence of Winston, Wilmeth, about November 1, 1932, took possession of said real estate referred to as the "Blankenship property" and has ever since been using, occupying and enjoying said real estate "and personal property belonging to said estate." That the reasonable rental value of said property so used by Wilmeth was $15 per month, for which plaintiff sought judgment against both of said defendant administrators in the sum of $1500. That Wilmeth's final account recited that the estate was indebted to him in the sum of $528 "for labor and repairing buildings 132 days." That said claim was not dated, did not show the property to which it related, nor the time nor necessity for such labor, and was not verified as required by Art. 3692. That the same section of Winston's final account recited "the following are owing by the estate in addition to those enumerated above: none." That the defendant administrators had administered the estate carelessly, negligently and in disregard of the duties and obligation imposed upon them by statute. That notwithstanding such management, each filed claim for commissions in their final accounts.

Plaintiff alleged that in December, 1936, before plaintiff qualified as administrator de bonis non, "and without auditing or restating same or having settlement thereon, the said County Court * * * inadvertently, mistakenly, erroneously and wrongfully entered orders concerning both of said purported final accounts, in terms apparently approving both of them, as hereinbefore set forth." Petitioner then alleged that the records showed, as a matter of law, that the "so-called" final accounts were not considered or adjudicated upon by the court as final accounts for the following reasons: (1) They were not audited nor restated, nor settlement required nor had by the court as is provided by Art. 3472. "(2) No order was then made nor has any since been made, accepting the resignation nor discharging said defendants as administrators." That said final accounts did not show that an inheritance tax had been paid. (4) That said final accounts were "unacceptable as such because they show and recite maladministration by said co-administrators in the admitted and unauthorized retention by them of moneys belonging to said estate, and because they show and recite rental of real property belonging to said real estate without order of the court and without taking note or security therefor." Plaintiff then alleged, among other things, that said final accounts were not accompanied by vouchers, were not complete and did not furnish means whereby audit and settlement of their accounts could be had.

Plaintiff further alleged that in the order appointing him administrator de bonis non, he was authorized to receive from Wilmeth and Winston all property belonging to the estate that had come into their hands and to settle their accounts under the supervision of "this" court. Plaintiff prayed for an "order holding and declaring said purported final accounts to be ineffective as such final accounts and final settlements, and holding and declaring that they were not adjudicated upon as final settlement and final accounts; and that the said Harrie Winston and Lex C. Wilmeth be now required to make final accounting and final settlement * * *."

The Surety Corporation, among other things, filed a plea to the jurisdiction of the court and abatement. It excepted to the petition, among other things, because plaintiff sought to maintain the suit as next friend to Mrs. Wilmeth, and no facts were alleged which would authorize plaintiff to maintain the suit in that capacity, and further because plaintiff's petition was for an accounting and restatement of the final accounts of the administrators in chief and no judgment or relief was prayed for against the defendant Surety Corporation. The Surety Corporation also excepted as follows:

"This Defendant specially excepts to said amended petition, for the reason that the same is merely for an accounting and restatement of the final accounts of the Administrators in Chief of said estate and no judgment or relief is prayed for as against this Defendant; and, further, that the liability, if any, of this Defendant is as surety upon the bond of Administrators in Chief and therefore secondary, and no recovery could be had against this Defendant under the cause of action asserted, even if judgment or relief were prayed for; and since no judgment or relief is sought against this Defendant, said amended petition fails completely to state a cause of action which could be maintained against it and this Defendant should be dismissed herefrom, and of this it prays judgment of the Court."

The defendant Winston answered, among other things, that in March, 1941, in cause No. 3301, in ...