Corpus Christi Bank and Trust v. Alice National Bank

• Decision Date: 30 July 1969
• Docket Number: No. B--1168,B--1168
• Citation: 444 S.W.2d 632
• Parties: CORPUS CHRISTI BANK AND TRUST et al., Petitioners, v. ALICE NATIONAL BANK et al., Respondents.
• Court: Texas Supreme Court

Page 632

444 S.W.2d 632

CORPUS CHRISTI BANK AND TRUST et al., Petitioners, v. ALICE NATIONAL BANK et al., Respondents.

No. B--1168.

Supreme Court of Texas.

July 30, 1969.

Rehearing Denied Oct. 1, 1969.

Branscomb, Gary, Thomasson & Hall, Richard A. Hall and G. Ray Miller, Jr., Fischer, Wood, Burney & Nesbitt, Frank Nesbitt, Corpus Christi, for petitioners.

Perkins, Floyd, Davis & Oden, John C. Mullen, Alice, H. H. Rankin, Jr., Rankin, Kern, Martinez & Van Wie, McAllen, Baker, Botts, Shepherd & Coates, L. Denman Moody, Houston, for respondents.

HAMILTON, Justice.

Alice National Bank has been acting as the independent executor of the estate of Sarita Kenedy East, who died on February 11, 1961. Since that date, there has been much litigation over the disposition of Mrs. East's estate. See Turcotte v. Alice National Bank, 402 S.W.2d 894 (Tex.Sup.1966), reversing 394 S.W.2d 228 (Tex.Civ.App.--Waco, 1965). This particular dispute arises between the independent executor and a temporary administrator over possession of the estate properties. For purposes of this case, the controlling and undisputed facts can be set forth succintly.

On January 22, 1960, Mrs. East executed a will, to which she added four codicils. In this will, respondent Alice National Bank and two individuals now deceased were named as independent executors of the estate without bond. On March 6, 1961, the 1960 will was admitted to probate without contest, and Alice National Bank qualified and commenced to serve as an independent executor. On June 5, 1961, an order of the probate court approved the inventory, appraisement, and list of claims prepared by the independent executors.

On July 25, 1962, a number of Mrs. East's heirs at law filed suit to set aside the probate of the 1960 will; on January 8, 1964 in this same proceeding, an application to probate a will executed by Mrs. East in 1948 was filed. Also on January 8, 1964 some contestants of the 1960 will applied to the probate court for the appointment of a temporary administrator for the purpose of filing suits to cancel royalty assignments executed by Mrs. East to the John G. and Maria Stella Kenedy Memorial Foundation during her lifetime. The probate court made this appointment on January 16, 1964. On October 7, 1965, petitioner Corpus Christi Bank & Trust was appointed successor temporary administrator for this purpose.

On March 29, 1968, the probate court, after a trial on the merits in the suit to declare the 1960 will invalid, entered a judgment which set aside the probate of the 1960 will, admitted the 1948 will to probate, and enlarged the powers of temporary administrator Corpus Christi Bank & Trust to hold, operate, and invest the estate property in place of independent executor Alice National Bank. This last portion of the judgment specifically ordered the Corpus Christi Bank & Trust to take over the assets of the estate from the Alice National Bank 'pending the finalty of this judgment determining the merits of the will contest.' The Alice National Bank appealed from this judgment to the District Court of Kenedy County. This appeal is pending in that court at this time.

On May 4, 1968, in this same proceeding appealing the probate court judgment of March 29, 1968, respondent Alice National Bank sought a temporary injunction from the District Court of Kenedy County for the period of the pendency of the appeal in the district court from the March 29, 1968 judgment. This requested order was designed to prevent Corpus Christi Bank & Trust, petitioners Patrick A. Turcotte, et al., and Lee H. Lytton, an independent executor named in the 1948 will, from attempting to interfere with Alice National Bank's possession of the estate properties pending trial de novo of the merits of the will contest in the district court. On May 17, 1968, after hearing, the District Court of Kenedy County denied the temporary injunctive relief sought by the Alice National Bank.

On appeal from the order denying the injunctive relief, the Corpus Christi Court of Civil Appeals has in part reversed the trial court by granting a temporary injunction against petitioner Corpus Christi Bank & Trust. 431 S.W.2d 611. The terms of this order prohibit the Corpus Christi Bank & Trust from interfering with possession of the estate by the Alice National Bank pending trial de novo on the merits of the will contest or further orders of the district court.

This Court granted petitioners Corpus Christi Bank & Trust, Patrick A. Turcotte, et al., and Lee H. Lytton's applications for writs of error on the questions of the effect of the probate court's order enlarging the powers of the Corpus Christi Bank & Trust pending appeal to the district court and the propriety of the injunctive relief against the Corpus Christi Bank & Trust granted by the Court of Civil Appeals. We have concluded that the injunctive relief granted by the Court of Civil Appeals was proper, and accordingly affirm the judgment of that court.

An initial inquiry in this dispute must be a determination of the effect of the judgment invalidating the 1960 will on the administration of the estate.

Alice National Bank qualified as an independent executor of Mrs. East's estate by judgment of the probate court on March 6, 1961, and on June 5, 1961 an order of the probate court approved the inventory, appraisement, and list of claims filed by the independent executors. After this June 5, 1961 order, Alice National Bank under the Texas Probate Code was entitled to represent the estate of Mrs. East free of judicial supervision except where provided by statute. This is in accordance with Sec. 145 of the Probate Code, V.A.T.S., which provides that:

'Any person capable of making a will may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement, and list of claims of his estate. When such will has been probated, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the court, as long as the estate is represented by an independent executor, further action of any nature shall not be had in the court Except where this Code specifically and explicitly provides for some action in the court.' (Emphasis added) ¹

This freedom afforded Alice National Bank as independent executor is in keeping with the historic purpose of the first independent administration act in Texas: 'that no other action than the probate and registration of the will shall be had in the Probate Courts.' Laws of the Republic of Texas, 1843, An Act to Amend the Probate Law, Sec. 5; 2 Gammell, Laws of Texas 834 (1898). The purpose of this and subsequent related acts has been to free an estate of the often onerous and expensive judicial supervision which had developed under the common law system, and in its place, to permit an executor, free of judicial supervision, to effect the distribution of an estate with a minimum of cost and delay. See 33 Tex.L.R. 95 (1954), Marschall, Independent Administration of Decedents' Estates; 34 Tex.L.R. 687 (1956), Woodward, Independent Administrators Under the New Texas Probate Code; also cf. Cleveland v. Cleveland, 89 Tex. 445, 35 S.W. 145 (1896). This Court has recognized this rationale in saying that the general intent of Sec. 145 of the Probate Code is 'to free the 'independent executor' from the control of the court, except where the Code specifically and explicitly provides otherwise.' Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex.Sup.1968).

It is clear, then, that after the qualification of Alice National Bank as independent executor in the March 6, 1961 probate court judgment, and the subsequent order approving the inventory, appraisement, and list of claims filed by the independent executors, specific statutory authority was necessary for the probate court to affect the control of the estate which rested in the independent executors. This authority can arise within the context of two statutory procedures.

First, the probate of the 1960 will could be challenged within the two year period provided in Sec. 93 of the Texas Probate Code:

'After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward.'

After a trial of this contest, the probate court could, as it did here, invalidate the previously probated will and with it the independent executorship created by such a will. But the perfection of an appeal to the district court suspends the judgment or order entered by the probate court in a contest of a previously probated will. This suspension is specifically provided by Rule 335, Texas Rules of Civil Procedure, which sets forth that an appeal from a probate court judgment to the district court:

'* * * shall suspend the decision, order, decree or judgment, or the designated portion thereof appealed from, except as may be otherwise expressly provided by law;'

This appeal was in fact perfected by the Alice National Bank, and by virtue of this Rule, the effect of the March 29, 1968 judgment was suspended pending a final adjudication in the district court. In this procedure to set aside the probate of a will under Sec. 93, there is no additional provision for the assets of an estate being turned over to a temporary administrator pending final adjudication of the will contest as long as an independent executor with full powers remains in office.

Secondly, an independent executor can be removed by the probate court if one of the conditions set forth in Sections 217 and 222(a) of the Texas Probate Code occurs. ²...