Fortson v. Alford

• Decision Date: 05 December 1884
• Docket Number: Case No. 1594.
• Citation: 62 Tex. 576
• Parties: MARY P. FORTSON v. GEO. F. ALFORD.
• Court: Texas Supreme Court

62 Tex. 576

MARY P. FORTSON

v.GEO. F. ALFORD.

Case No. 1594.

Supreme Court of Texas.

Dec. 5, 1884.

APPEAL from Dallas. Tried below before the Hon. Geo. N. Aldredge.

The following statement, taken from brief of counsel for appellant, was adopted by the commission of appeals as their statement of this cause to the supreme court:

Geo. F. Alford, the appellee, was administrator of the estate of John E. Cravens, father of appellant, which was pending in the probate court of Anderson county, and finally closed in the year 1880.

In July, 1879, Alford, on his application, was appointed guardian of the minor Earle Cravens, sister of appellantMary P. Fortson--these two sisters being the sole heirs of their father, John E. Cravens.

The minor, Earle Cravens, died in April, 1880.

In July, 1880, Alford filed his final account as guardian for settlement, setting forth an indebtedness due by the estate of about $1,500 or $1,600; $1,000 of which was due the guardian for advances, expenses of last sickness; the remainder due for court costs and attorneys' fees.That final account further set forth that all of the assets left to pay the indebtedness were four tracts of land, the remainder of the twenty-three tracts belonging to the ward having been conveyed before her death to W. G. Veal in trust for other parties, which he asked the sale of to pay the debt of the estate.

This final account was contested by appellant joined by her husband (then alive), and resulted in a decree of the probate court of Anderson county in July, 1880, refusing to recognize or sanction the conveyance of five thousand four hundred and four acres of land to Veal, trustee, but approving and confirming the amount claimed by guardian as due by the ward's estate for the sum of $1,569.86, including $200 due T. J. Williams, attorney, and court costs; further directing that the guardian retain in his hands as security for the amount seven tracts of the ward's land, subject to the further order of the court.

The cause was appealed by Alford to the district court of Anderson county.

On 4th March, 1882, this appeal coming on for trial in the district court was consolidated with an original suit brought by appellant and her late husband in that court against Veal, trustee, and others, and after being tried, etc., there was a judgment rendered in favor of appellant setting aside the conveyance of the land to Veal, adjudging that appellant was entitled to all of the estate of her sister as sole heir, adjusting and settling the sum allowed by the county court, viz., $1,569.86, as the amount of indebtedness due from the estate to the guardian, Alford, and directing him to retain seven tracts of land, describing them, as security for the payment of the claim, but subject to the future order of the court, and ordering the guardian to turn over all the balance of the estate to appellant.

An appeal was prosecuted from this judgment by Alford (by executing a cost bond which did not suspend judgment) to the supreme court.

This judgment was affirmed by the supreme court in case of Veal v. Fortson, reported in 57 Tex., p. 482.

In September, 1880, after the judgment of the probate court of Anderson was rendered, settling the final account of the guardian of Earle Cravens, and whilst the matter was pending on appeal to the district court, Alford, guardian, made application to the county court of Dallas county sitting in probate, and was appointed administrator of Earle Cravens, deceased.

This was without the knowledge or consent of appellee, who lived in a distant county.

The application was granted on the ground that the estate was considerably indebted to the administrator, and Alford was appointed administrator by said probate court, and the administration remained open and pending until May, 1882.During this time the administrator reported that an indebtedness of $1,569.86 existed, which was the same claim already allowed, adjudicated and settled by the county court of Anderson county; to settle which indebtedness he obtained an order of sale for four tracts of land belonging to the estate, which it was alleged in plaintiff's petition were of the reasonable value of $3,000, which he sold for the sum of $700, and had applied for an order to sell additional lands, when, the fact of administration coming to appellee's knowledge, she filed, February 28, 1882, her application, in substance a bill of review to rehear and correct the former orders made in the probate court of Dallas county, and to rescind and annul all former orders made therein.

This was the beginning of (the second) litigation between appellant and appellee.

After a general demurrer and a general denial filed by defendant Alford, the cause was tried by the probate court of Dallas county on the merits, and a judgment was rendered therein, 22d May, 1882, revoking and annulling the former orders granting letters and all sales of land and approval of debts in connection therewith, and removing the administrator upon the ground that the court had no jurisdiction in the premises.

This was appealed to the district court of Dallas county by appellee, and being tried and heard on the general demurrer to plaintiff's petition, the demurrer was sustained, and, plaintiff declining to amend, the suit was dismissed, and it was ordered that the decision be certified to the probate court for observance.

From that judgment this appeal was taken.

Read & Read and Field & Johnson, for appellant, on the jurisdiction of the county court of Dallas county over the subject-matter, cited: Newson v. Chrisman, 9 Tex., 111;Wall v. Clark, 19 Tex., 324;Janson v. Jacobs, 44 Tex., 575;Franks v. Chapman, 2 LawRev., 53;Timmins v. Bonner, 1 Tex. Law Rev., 130; Young v. Gady, Supreme Court, Austin Term, 1884;3 LawRev., 45;Withers v. Patterson, 27 Tex., 494;Fisk v. Norvel, 9 Tex., 13;McMahan v. Rice, 16 Tex., 335;Marks v. Hill, 46 Tex., 346;Duncan v. Veal, 49 Tex., 610;Murchison v. White, 54 Tex., 84.

On the power of the county court to revise its orders by bill of review, they cited: Thouvenin v. Rodrigues, 24 Tex., 480;Giddings v. Steele, 28 Tex., 757;Murchison v. White, 54 Tex., 84;McMahan v. Rice, 16 Tex., 338;35 Tex., 668; Freeman on Judg., secs. 336,490,491, and notes.

M. Barksdale and Jeff.Word, for appellee, cited: Timmins v. Bonner, 58 Tex., 554.

WATTS, J. COM. APP.

As our present constitution does not confer upon district courts original jurisdiction and control over county courts when acting in the capacity of courts of probate, the pertinentquestion arises in this case as to the power of the courts of probate to entertain bills of review, and to revise or annul their own orders, decisions or decrees.In Franks v. Chapman, 60 Tex., 576, it was in effect held that the district courts had no original jurisdiction or control over probate courts, but that their power in respect to probate courts was appellate only; and that courts of probate had the power to entertain bills of review and to annul in that way their own decrees probating wills.

It is provided with respect to guardianships that “Any person interested may, by a bill of review filed in the court in which the proceedings were had, have any decision, order or judgment rendered by such court, or by the judge thereof, revised and corrected on showing error therein.”R. S., art. 2716.

The primary rule of construction to be applied to the Revised Statutes is that they“shall be liberally construed with a view to effect their objects and to promote justice.”

And it would...