Currie v. Drake
| Decision Date | 29 March 1977 |
| Docket Number | 19127,Nos. 19126,s. 19126 |
| Citation | 550 S.W.2d 736 |
| Parties | Ralph W. CURRIE, Appellant, v. Millard L. DRAKE, Executor of the Estate of Eugene Dixon Duncan, Deceased, Appellee. Elizabeth HOLT, Appellant, v. Millard L. DRAKE, Executor of the Estate of Eugene Dixon Duncan, Deceased, Appellee. |
| Court | Texas Court of Appeals |
Ralph W. Currie, Dallas, for appellants.
Roy J. True, True & Zable, Dallas, for appellee.
Appellant, Elizabeth Holt, appeals in cause No. 19127 from a probate court's order finding her individually liable in the sum of $12,771.10 paid by the estate of Eugene Dixon Duncan on a claim by her attorneys when she was the administratrix of the estate and from the probate court's refusal to allow her to claim offsets as administratrix to which she is allegedly entitled. Appellant, Ralph Currie, her attorney when she was administratrix, in cause No. 19126 appeals from the same order finding him individually liable for the same sum and directing that court costs in the amount of $771.10 be assessed against him. We have consolidated the two appeals because of their similarity of issues. Both appellants contend that the probate court erred in construing the mandate previously issued by this court reversing the probate court's original order directing payment of the claim. Further, appellant Currie argues that the probate court disregarded the supreme court's opinion in Muse, Currie & Kohen v. Drake, 535 S.W.2d 343 (Tex.1976), when it assessed the court costs against him. Although we do not hold that the probate court erred in the substance of its order, we do hold that the court should have held an evidentiary hearing and that the court entered an improper order in that it should have entered a judgment, assessing the costs against Drake. Consequently, we reverse and remand the cause with instructions.
The background facts of this case are reported in Drake v. Muse, Currie & Kohen, 532 S.W.2d 369 (Tex.Civ.App. Dallas), writ ref'd n. r. e. per curiam, 535 S.W.2d 343 (Tex.1976). Consequently, we will limit our discussion to those facts pertinent to this appeal. While Holt served as the administratrix of the estate, the law firm of Muse, Currie & Kohen was employed as her attorney, and they presented a statement for services rendered in regard to a successful contest of an application to probate a foreign will of the decedent, to revoke Holt's letters of administration, and to issue letters testamentary to Millard L. Drake, the executor named in the will. The statement was for $12,771.10. Holt allowed the claim against the estate and filed an application with the probate court for attorneys' fees requesting it to approve the claim under Tex.Prob.Code Ann. § 242 (Vernon 1956). Drake, the proponent of the foreign will, objected upon the ground that the fees were personal expenses incurred by Holt to preserve her status as administratrix and, therefore, were not a claim against the estate. A hearing was held and the probate court approved the claim against the estate. After an appeal without supersedeas was filed, Holt presented to the probate court an application for an order directing payment of the claim, and when the order was entered, the moneys were paid to the attorneys. On appeal, we reversed the order of the probate court and denied Holt's application for an order directing payment. After writ of error was refused by our supreme court, a mandate of this court was returned to the probate court as follows:
This cause came on to be heard on the transcript of the record, and the same being inspected, because it is the opinion of the Court that there was error in the judgment, it is therefore considered, adjudged and ordered that the judgment of the court below be reversed, and judgment is herein rendered that the application of Elizabeth Holt, administratrix of the Estate of Eugene Dixon Duncan, for an order directing the payment of a claim for attorney's fees to Muse, Currie & Kohen in the amount of $12,771.10 is denied, and that all costs be taxed against appellees Muse, Currie & Kohen, for which execution may issue, and this decision be certified below for observance.
Prior to the return of the mandate, the probate court admitted the foreign will of the decedent to probate, revoked Holt's letters of administration and issued letters testamentary to Drake. When the mandate was returned, Drake filed an application seeking delivery of the estate's assets including reimbursement of the $12,771.10 paid to Holt's attorney under the erroneous order. A show-cause order was issued and served upon Holt and Currie, who filed a written response and appeared for hearing on the day ordered. Subsequently, without hearing any evidence, the probate court entered the order now on appeal, which directs that Holt and Currie, her attorney, make restitution and pay the aggregate sum of $12,771.10 to the estate in observance of our mandate. The order directs both Currie and Holt to return the sum to the estate.
Before we can address the substantive issues, first we must determine if we have jurisdiction of the appeal. Drake, on behalf of the estate, has filed a motion to dismiss both appeals on the ground that the order appealed from is interlocutory and, therefore, not appealable. The order directs that: (1) Holt file a final accounting with the probate court not later than five days after entry of the order; (2) Holt deliver all assets and property of the estate in her possession no later than five days from the entry of the order; (3) Holt and Currie make restitution and pay the estate the sum of $12,771.10 in compliance with the mandate; and (4) Drake not remove any assets of the estate from the jurisdiction of the probate court until the final accounting or until further orders are rendered. Drake contends that although the pertinent part of the order appealed completely adjudicates the issue now raised on appeal, all additional pronouncements contained in the order are interlocutory and, therefore, the whole order lacks finality. Our supreme court has written that an appeal in a probate matter is authorized if it is taken from a decision, order, decree, or judgment which finally disposes and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213 (1960). Although the probate court's decision must have conclusively adjudicated the controverted question or right, the decision need not be one which finally and fully disposes of the entire probate proceeding. Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945). We agree with the reasoning of the Houston Court of Civil Appeals when it wrote that when a trial court's judgment in a probate proceeding effectively disposes of the basic controverted issue between the parties, the judgment is final and appealable. Cherry v. Reed, 512 S.W.2d 705, 707 (Tex.Civ.App. Houston (1st Dist.) 1974, writ ref'd n. r. e.). In this case, the controverted issues are whether: (1) the court properly held Holt and Currie responsible for restitution to the estate without offsets, and (2) the court had jurisdiction to issue any further order binding on Holt and Currie since our reversal was a negative pronouncement with no relief of restitution ordered. These issues have been finally adjudicated by the court and, therefore, the order is appealable.
The estate cites Powell v. Hartnett, 521 S.W.2d 896 (Tex.Civ.App. Eastland 1975, no writ), to support its contention that this order is not appealable. However, in that case the court held that the order did not dispose of the issue of ownership of money, but instead merely placed the items under the care and control of the probate court until a final determination of ownership. In this case, the probate court has ordered money returned to the estate in compliance with our mandate, and there is no further determination to be made of the issues. Consequently, we overrule the estate's motion to dismiss the appeal and hold that we have jurisdiction.
Holt contends that the probate court erred in construing our mandate to hold her individually liable to the estate. In our prior opinion, we specifically held that Holt did not have a legal duty as administratrix to resist the application for probate of the foreign will and that the mere fact that the probate of the will might alter or exhaust a share in the estate of an heir does not, in itself, create a legal duty on the part of the administratrix which would allow her to charge the resulting attorneys' fees to the estate. Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 374 (Tex.Civ.App. Dallas), writ ref'd n. r. e. per curiam, 535 S.W.2d 343 (Tex.1976). Consequently, any sum charged by her attorneys for contesting the probate of the foreign will was her debt and not chargeable to the estate. Since her debt is personal and not in the capacity as administratrix, the probate court was correct in holding her individually liable for reimbursement.
Although Holt contends that she should not be individually liable because she was acting only under the orders of the court, the record reveals that she actively sought payment of her attorneys claim against the estate. The executor, as current representative of the estate, argues that she was under no duty to pay the money before a final adjudication of the matter on appeal. Our supreme court has long held that a party obtaining any advantage or benefit through a judgment that is later reversed must return the benefit to the other party. Peticolas v. Carpenter, 53 Tex. 23 (1880). When the estate...
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