Faulkner v. Reed

• Decision Date: 16 February 1921
• Docket Number: (No. 6511.)
• Citation: 229 S.W. 945
• Parties: FAULKNER et al. v. REED.
• Court: Texas Court of Appeals

Page 945

229 S.W. 945

FAULKNER et al. v. REED.

(No. 6511.)

Court of Civil Appeals of Texas. San Antonio.

February 16, 1921.

Rehearing Denied March 16, 1921.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Suit by E. B. Reed against B. M. Faulkner, for whom E. R. Faulkner, as administrator of his estate, and others, were substituted on his death. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Taylor, Forrester & Stanford, of Waco, for appellants.

Johnston & Hughes, of Waco, for appellee.

COBBS, J.

This suit was instituted by appellee, E. B. Reed, on January 30, 1918, against B. M. Faulkner, alleged to be a non-resident of the state and a transient person, and an attachment was sued out and levied on 54.1 acres of land in Coleman county, Tex. After the filing of the suit, on May 24, 1918, B. M. Faulkner died, and E. R. Faulkner, as administrator, in Ohio, of the estate of B. M. Faulkner, deceased, and E. R. Faulkner as an heir, and Mary M. Faulkner as an heir and surviving widow, were made parties defendant. The suit was for damages for breach of four contracts, alleged to have been executed by B. M. Faulkner during his life-time, to jointly engage in the show business. Laura Nyman and her husband were also made parties defendant, in order that a conveyance of the land made to her by E. R. Faulkner and Mary M. Faulkner might be set aside. All of the named parties, including Bascom M. Faulkner, up to the time of his death, were residents of the state of Ohio at the institution of the suit, and have continuously resided in Ohio up to and including the date of the trial. Bascom M. Faulkner appeared personally in this case before his death and made defense. He died during the pendency of this suit, and after his death E. R. Faulkner, as his administrator, who administered his estate in the state of Ohio, and Mary M. Faulkner, surviving wife, the only heirs of said deceased, appeared in this case, and both filed pleadings, as did Laura Nyman and C. W. Nyman, her husband.

E. R. Faulkner appeared and filed an amended answer, in which he undertook to limit his appearance, saying he only appeared for the purpose of quashing the nonresident notice served on him; but it contains a full answer, subject to his motion to quash service, and closes with a general denial.

Mary M. Faulkner, the surviving widow, appears and "makes as her own answer the general demurrer, the special exceptions, and the general denial filed by her codefendant, E. R. Faulkner," etc. Likewise Laura Nyman appeared and filed answer.

The case was tried by the court with a jury upon special issues, and upon the answers the court entered judgment in favor of appellee against the estate of Bascom M. Faulkner, deceased, E. R. Faulkner, administrator, for $6,250, with 6 per cent. interest from January 1, 1918, and personal judgment against E. R. Faulkner and Mary M. Faulkner, heirs of Bascom M. Faulkner, deceased, jointly and in rem for the purpose of foreclosing an alleged creditor's lien on the 54.1 acres belonging to Bascom M. Faulkner at the date of his death, and canceling a conveyance of the same made to Laura Nyman, and ordering sale of said land in satisfaction of said debt. The judgment was made a severable one; that is, $3,125 of the total amount against E. R. Faulkner and Mary M. Faulkner each, as heirs, provided that, if the land did not sell for a sufficient amount to pay off the total, the deficiency should be made out of said two defendants, and the excess, if any, after the sale, was directed to be paid over to said named defendants in equal proportion.

By the answers filed the defendants waived all pleas of privilege or venue that they may have had to be sued in Ohio, and thereby submitted themselves to the jurisdiction of the court for all the purposes appertaining to that jurisdiction. York v. State, 73 Tex. 657, 11 S. W. 869. They were the only representatives and heirs of that estate.

On a somewhat similar question, the United States Circuit Court of Appeals in Lackner v. McKechney, 252 Fed. 408, 164 C. C. A. 332, said:

"Assuming that under the Illinois statutes a foreign executor is not subject to suit, clearly this privilege may be waived. Weir, as executor, by filing his bill for an accounting, necessarily and expressly offered to pay what might be found due from him to the defendants; but, inasmuch as he invited the adjudication of creditors' claims, he must be held likewise to have waived any such privilege as against them. Decker v. Patton, 20 Ill. App. 210. Moreover, he filed a general demurrer for want of equity to appellants' claim. He thereby waived any personal privilege exempting him as a foreign executor from suit. Newark Savings Institution v. Jones' Executors, 35 N. J. Eq. 406; Palm's Adm'r v. Howard (Ky.) 102 S. W. 267. Cf. Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct. 440, 36 L. Ed. 130."

Under our own statutes, when a person dies without a will, his estate vests in his heirs. Article 3235, Vernon's Sayles' Ann. Civ. St. 1914. And any creditor may sue any distributee who shall not be liable beyond his just proportion that he has received in the distribution of the estate. Articles 3391 and 3456.

The land in controversy was community property between the deceased and his said surviving wife, Mary, and no other person was interested in his estate besides the two, E. R. Faulkner and his mother, Mary, each one acquiring one-half, subject to the claims of the creditors. The deceased died in Arkansas, but resided in the state of Ohio, where his estate was administered by E. R. Faulkner, his said son, and where the principal estate was situated. Prior to the trial of this cause the said administrator filed his final account in Ohio and settled with the widow, but it is not shown that the estate was closed. Prior thereto the land in controversy had been conveyed to Laura Nyman, mother-in-law of E. R. Faulkner, for a recited consideration of $2,705.

When these defendants made their voluntary appearance, they were the sole representative owners and heirs of said estate, and they, with the Nymans, were the only parties adversely interested in the land or the estate. So we must hold they are before the court properly for all the purposes of this suit.

At the time of the trial the administration had not been formally closed, though all debts there seemed to have been paid or provided for, but the estate not distributed and divided between E. R. Faulkner, the son and only child of deceased, and Mary M. Faulkner, surviving widow.

The first assignment of appellant complains that the judgment was erroneous because there was no representative of said estate before the court.

The second assignment of error complains that the court erred in rendering judgment against E. R. Faulkner, administrator of said estate in Ohio, because a foreign administrator cannot sue or a suit be maintained against him in this state. The proposition, as an abstract or academic question, is no doubt sound, but it is not applicable here. While the judgment does in a sense have somewhat that appearance, it is not so in fact. The Ohio estate, while not entirely wound up and distributed, so far as the Faulkners were concerned, the Texas land had been sold by them to their codefendant, which was against every one save creditors, conveyed away from said estate as they had a right to do, and to that extent may be treated as administered and distributed estate between themselves. While the judgment was against the estate and the administrator, it was also in rem for the purpose of foreclosing the creditors' lien.

This judgment may be, as to the land, treated as merely descriptive, its purpose not being primarily to fix the lien of a creditor on property that belonged to an administered estate in the hands of distributees or in the hands of a fraudulent vendee of the heirs to whom such estate had been conveyed under such circumstances as to bind the estate, but, if not to do that, still it bound them by the conveyance. The form of the judgment is of slight consequence, since whoever held the land here in controversy did so in the sense of a trustee for the benefit of the creditors of that estate, even though regarded as a distribution of a portion of the estate. It was primarily a proper judgment to subject the land under the circumstances to the discharge of the claim before undertaking to hold the heirs.

It is true, as contended by appellant, an administrator is the agent of the court in the jurisdiction where he is appointed, and as such administrator in Ohio he is not subject to the jurisdiction of the courts of Texas unless he voluntarily appears and submits to its jurisdiction. There must be before the court a legal representative. And in cases where the suit had been instituted and proper service had, upon the death of the party such suit abates, and cannot be prosecuted further without the substitution of a personal representative. Nor can such an appearance be made by a person not so authorized. Jones v. Jones' Heirs, 15 Tex. 463; Greer et al. v. Ferguson et al., 56 Ark. 324, 19 S. W. 966.

But, as seen, the estate was wound up, so far as creditors were concerned, in Ohio, though not finally distributed. We see no reason, as said in Lackner v. McKechney, why the privilege could not be waived by the personal representative in both capacities, and why he was not lawfully empowered to defend without taking out letters in Texas, as this privilege was waived by his appearance.

The property in Texas was found to be community property of the deceased and his surviving wife. The testimony shows that E. R. and Mary M. Faulkner sold this property reciting a cash consideration, and he stated he sold it under authority of the judge of the court of Ohio, though it was not inventoried in the estate.

Under our statute, article 3456, Vernon's Sayles' Ann. Civ. St. 1914, creditors may have their right of...