Decker v. Wiggins

• Decision Date: 27 October 1967
• Docket Number: No. 16861,16861
• Parties: Carmen E. DECKER, Guardian of Estates of Kathryn Mae Mollohan et al., Minors, Appellant, v. Wayne WIGGINS, District Clerk, et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 189

421 S.W.2d 189

Carmen E. DECKER, Guardian of Estates of Kathryn Mae

Mollohan et al., Minors, Appellant, v. Wayne WIGGINS, District Clerk, et al., Appellees.

No. 16861.

Court of Civil Appeals of Texas.

Fort Worth.

Oct. 27, 1967.

Nelson, Montgomery & Robertson, and David Tate, Wichita Falls, for appellant.

Peery, Wilson & Jameson, Wichita Falls, for appellee Wayne Wiggins in trial court.

Jones, Fillmore, Robinson & Lambert, Wichita Falls, for appellee North Texas Federal Savings and Loan Ass'n in trial court.

Humphrey, Gibson & Darden, Wichita Falls, for appellee Wichita Falls Savings Ass'n in trial court.

OPINION

RENFRO, Justice.

This case was presented to the trial court on an agreed statement of facts.

On June 14, 1965, Kathryn Mae Mollohan and Debra Lynne Mollohan, minors, acting by and through their grandmother, Mrs. Carmen E. Decker, as next friend, recovered a judgment for personal injuries and for the death of their mother.

Shortly after judgment the District Clerk, Wayne Wiggins, received a total of $8,516 for the benefit of Debra Lynne Mollohan and $10,948.68 for the benefit of Kathryn Mae Mollohan.

On June 23, 1965, the District Clerk, acting under the direction of the court, deposited the funds in two savings and loan associations.

Thereafter, on October 31, 1966, Mrs. Carmen E. Decker was duly appointed guardian of the estates of the two above named minors in Cause No. 3046 in the County Court of Wichita County, Texas. She has also qualified as guardian of the estates of the two minors in Logan County, Colorado.

After qualifying as guardian, Mrs. Decker made demand on the District Clerk and the two savings associations for delivery of the money belonging to her wards.

The only reason the defendants refused to deliver such funds was that they had not been so ordered by the District Court.

The Court refused to order the funds delivered to the guardian; hence this appeal.

The Court acted under authority of Article 1994, Vernon's Ann.Tex.Civ.St., in ordering the money paid into court under the judgment obtained by the next friend to be invested in the savings associations.

The pertinent sections of said Article read as follows:

'Minors, lunatics, idiots or non compos mentis persons who have no legal guardian may sue and be represented by 'next friend' under the following rules: 1. In such cases when a judgment is recovered for money or other personal property the value of which does not exceed One Thousand, Five Hundred Dollars ($1,500), the court may by order entered of record, authorize such next friend or other person to take charge of such money or other property for the use and benefit of the plaintiff when he has executed a proper bond in a sum at least double the value of the property, payable to the county judge, conditioned that he will pay said money with lawful interest thereon or deliver said property and its increase to the person entitled to receive the same when ordered by the court to do so, and that he will use such money or property for the benefit of the owner under the direction of the court.

'2. The judge of the court in which the judgment is rendered upon an application and hearing, in term time or vacation, may provide by decree for an investment of the funds accruing under such judgment. Such decree, if made in vacation, shall be recorded in the minutes of the succeeding term of the court.

'3. The person who takes such money or property shall receive such compensation as the court may allow and shall make such disposition thereof as the court may order; and he shall return such money or property into court upon the order of the court.'

It is the position of the guardian that, after she qualified as such, she was entitled to possession, control and custody of all the estate of her wards.

Subsection (b) of Section 230, Probate Code, V.A.T.S., provides that 'The guardian of the estate of a ward is entitled to the possession and management of all properties belonging to the ward, to collect all debts, rentals, or claims due such ward, to enforce all obligations in his favor, and to bring and defend suits by or against him; but, in the management of the estate, the guardian shall be governed by the provisions of this Code. It is the duty of the guardian of the estate to take care of and manage such estate as a prudent man would manage his own property. He shall account for all rents, profits, and revenues that the estate would have produced by such prudent management.'

Section 231 of the Code provides that 'The guardian of both person and estate has all the rights and powers, and shall perform all the duties, of the guardian of the person and of the guardian of the estate.'

It is provided in Section 233 that every personal representative of an estate shall use ordinary diligence to collect all claims and debts due the estate and to recover possession of all property of the estate to which its owners have claim or title.

The County Court has the general jurisdiction of a probate court. 'It shall * * *...