Fry v. Tucker

• Decision Date: 17 October 1946
• Docket Number: No. 6224.,6224.
• Citation: 197 S.W.2d 375
• Parties: FRY et al. v. TUCKER et al.
• Court: Texas Court of Appeals

197 S.W.2d 375

FRY et al. v. TUCKER et al.

No. 6224.

Court of Civil Appeals of Texas. Texarkana.

October 17, 1946.

Rehearing Denied November 7, 1946.

Appeal from District Court, Cherokee County; H. T. Brown, Judge.

Appeal by Frank A. Carpenter and others from an order of county probate court denying their motion to set aside appointment of J. R. Hill as administrator de bonis non of the estate of Francis Fry, deceased, certiorari by Mrs. Fannie Tucker and others to set aside such appointment, and appeal by Mrs. Fannie Tucker and others from an order of the county probate court appointing Fred Fry temporary administrator of the estate of Francis Fry, deceased. The cases were tried jointly and from a judgment ordering the administration of decedent's estate closed and setting aside the appointments of administrators de bonis non and temporary administrator, Fred Fry, individually and as temporary administrator of the estate of Francis Fry, deceased and others appeal, and appellees moved to dismiss the appeal.

Motion to dismiss appeal overruled. Judgment affirmed in part and reversed and remanded in part.

Vinson, Elkins, Weems & Francis, C. E. Bryson and P. Harvey, all of Houston, and Simon, Wynn, Sanders & Jones, of

Ft. Worth, and J. W. Chandler, of Jacksonville, for appellants.

Albert J. DeLange, DeLange, Beman & Hudspeth, J. W. Lockett, Kayser, Liddell & Austin, Dwight H. Austin, Norman J. Bering, Abe Wagner, Fountain, Cox & Gaines, and Joyce Cox, all of Houston, Summers Norman, of Jacksonville, and Gerald L. Johnson, of Dallas, Donald Campbell, Victor C. Mieher, L. A. Thompson, and Harry D. Page, all of Tulsa, Okl., for appellees.

WILLIAMS, Justice.

Certain probate orders granted in the probate court of Cherokee County, Texas, in a cause there numbered 17 and styled "Estate of Francis Fry, deceased," on an appeal to the district court of said county, were set aside and administration on the estate ordered closed. Litigants number in the hundreds and will be referred to as they were grouped and named in the judgment. Those named in groups 1 and 3, who are the appellees here, claim title to certain tracts out of a body of 2,200 acres of land in Harris County, Texas, whose title originated over 50 years ago in conveyances by persons claiming to be the sole heirs of Francis Fry and his son, Sam Houston Fry. The unknown heirs of various persons are named in group 7. A surety on a probate bond is named as the sole party in group 6. Fred Fry, as temporary administrator, is sole person named in group 2. Those named in groups 4, 5, and 7, claim to be the paternal heirs of Francis Fry, and with Fred Fry as temporary administrator are the appellants here.

Francis Fry, a citizen of Cherokee County, died there, intestate, September 11, 1856. In October, 1856, his brother-in-law, one J. F. Patton, was appointed and qualified as administrator of the estate. Patton died in 1895. In March, 1942, 47 years after Patton's death, and some 85 years after administration had been granted on the Fry estate, one J. R. Hill, neither a creditor nor an alleged heir, a resident of Harris County, made application to be, and after the posting of notice for ten days required in probate had been given, was appointed administrator de bonis non of the estate.

Hill as administrator de bonis non, after qualifying as such, intervened in certain trespass to try title actions that had theretofore been filed in the district courts of Harris County by some of the parties in groups 4 and 5, against a part of the appellees for recovery of certain lands patented to Francis Fry, situated in Harris County. Hill later instituted trespass to try title actions against the appellees in group 1 for recovery of other lands patented to Francis Fry. After Hill had intervened in above trespass to try title actions then pending in Harris County, Frank A. Carpenter and others named in group 3, who were the defendants there, filed a motion in the Cherokee County probate court to set aside the appointment of Hill as administrator de bonis non and to declare administration on the estate closed. Hill, in his official capacity, and all the appellants other than Fred Fry, as temporary administrator, resisted this motion. One C. R. Waites is one of the several hundred named in group 4, who joined in a contest of this motion. The probate court denied the relief sought under the motion.

Before the appeal papers reached the district court for filing, Mrs. Fannie Tucker and the others named in group 1, who were defendants in certain suits filed in Harris County by J. R. Hill, as administrator de bonis non, petitioned the district court for a writ of certiorari, attacking the appointment of J. R. Hill as administrator de bonis non, and to declare the administration on the estate closed. J. R. Hill, administrator de bonis non, was the sole respondent named. The writ of certiorari issued out of the district court.

With the above two causes pending in the district court, J. R. Hill died. Fred Fry then made application in the probate court for appointment as administrator de bonis non, and, in the alternative, for appointment as temporary administrator of Francis Fry's estate. All the appellees resisted the application in the probate court or any further proceedings in the case and prayed for the closing of the estate. The court refused to close the estate and refused the appointment as administrator de bonis non, but appointed Fred Fry temporary administrator and vested him with full power to prosecute the Harris County trespass to try title suits and take possession of the "estate's" property. After the appeal papers in this last proceeding were filed in the district court, Fred Fry, as temporary administrator, was made a party to the first two by writ of scire facias.

A joint trial of the three proceedings was ordered and had by the court. The jury found that the debts listed in the annual exhibit filed by Patton on December 28, 1857, in the administration, had been paid and that he had accounted to the probate court for the proceeds of a 17.2 acre tract of land belonging to the estate. Various issues dealt with heirships and were answered adversely to appellants. Grounded on the jury findings, the court found that none of the parties to the suit was related to or was an heir of either Francis, Emeline, or Sam Houston Fry, and that there were no debts owed by the estate of Francis Fry, in 1942, or subsequently. The decree further reads:

"That administration on the estate of Francis Fry, deceased, be, and the same is hereby ordered to be closed.

"That the order of the probate court of Cherokee County, Texas, dated May 25, 1942, purporting to continue administration on the estate of Francis Fry, and to appoint J. R. Hill as administrator, is set aside.

"That the order of the probate court dated September 14, 1944, refusing to set aside the order of May 25, 1942, is hereby set aside.

"That the order of the probate court of Cherokee County, Texas, dated January 16, 1945, appointing Fred Fry temporary administrator of the estate of Francis Fry, deceased, should be and the same is hereby set aside, and the prayer of the aforesaid Fred Fry for letters of administration, and all things prayed for in his application for letters of administration filed in the probate court of Cherokee County, Texas, should be and the same are hereby ordered denied.

"That the judgment is entered as the judgment of the court in each of the above captioned and numbered causes, and a copy thereof shall be certified to the probate court of Cherokee County, for its observance.

"The costs of each of the above proceedings are taxed against the persons in groups second, fourth, fifth, and sixth, for which let execution issue."

Appellants attack the procedure of being required to try the causes jointly, and further contend that by reason of the judgment entered pursuant to such joint trial C. R. Waites and all other appellants were made and became parties to all three proceedings, and by reason of the relationship of the Hon. H. T. Brown, trial judge, by affinity to the wife of C. R. Waites, the judgment and all orders so entered were null and void.

The trial judge, the Hon. H. T. Brown, was related by affinity within the third degree to Mrs. Waites, the latter and the wife of the trial judge being first cousins. Seabrook v. First National Bank, Tex. Civ.App., 171 S.W. 247. Above relationship was not discovered during the trial. The trial judge did not know of such relationship until it was raised on motion for new trial. Mrs. Waites was not named as a party to any of the actions here involved, but her husband, C. R. Waites, answered and was a party in cause No. 15748—A (the motion proceeding). With the exception of court costs, any adjudication with respect to the probate decree in No. 15748—A, either favorable or detrimental to her husband's claim, could affect only the alleged separate estate of her husband. Notwithstanding this and although she was not named as a party, the trial judge under Art. V, Sec. 11 of the Constitution, Vernon's Ann.St., was without valid authority to dispose of the matters involved in No. 15748—A. See also Seabrook v. First National Bank, supra; Duncan v. Herder, 57 Tex.Civ.App. 542, 122 S.W. 904; Schultz v. McLeary, 13 Tex. 92, 11 S.W. 924; Postal Mut. Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482. In Schultz v....