Gardner v. Union Bank & Trust Co., 14325.

• Decision Date: 30 January 1942
• Docket Number: No. 14325.,14325.
• Parties: GARDNER et al. v. UNION BANK & TRUST CO. et al.
• Court: Texas Court of Appeals

159 S.W.2d 932

GARDNER et al. v. UNION BANK & TRUST CO. et al.

No. 14325.

Court of Civil Appeals of Texas. Fort Worth.

January 30, 1942.

Rehearing Denied March 13, 1942.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Action by Union Bank & Trust Company against W. Scott Gardner and others to recover on a note and to foreclose a deed of trust lien, wherein other parties intervened. From an adverse judgment, W. Scott Gardner and others appeal.

Affirmed.

Frank Taylor, of Fort Worth, for appellants W. Scott and Helen Gardner.

John S. Morris, of Fort Worth, for appellants Mary Jane, Helen and June Simmons.

H. C. Ray, of Fort Worth, for appellant Charles Hodges.

Samuels, Foster, Brown & McGee, of Fort Worth, for appellee Union Bank & Trust Co.

G. L. Robertson, of Fort Worth, for appellees W. W. Dickinson et al.

Lightfoot, Robertson & Gano, of Fort Worth, for appellee Jo S. Hubbard.

James R. O'Daniel, of Fort Worth, for appellee Sloan Lumber Co.

Morgan Bryan, of Fort Worth, pro se.

SPEER, Justice.

Plaintiff Union Bank & Trust Company, a State banking corporation, hereinafter called Bank, instituted this suit against W. Scott Gardner and his wife, Helen Gardner, to recover judgment on a note in the principal sum of $15,716.10, with interest and attorney's fees, less certain admitted credits, and to foreclose a deed of trust lien on twenty-six described tracts of land in the City of Fort Worth, Texas. Allegations were made of the execution by the Gardners of the note and the deed of trust, and that the debt was due.

Several other persons were named by plaintiff as defendants, under allegations that they were asserting some kind of interest in the lands upon which it sought a foreclosure. Other parties intervened in the suit, seeking to have their claims established with liens on certain parts of the land to secure their respective debts, alleging that they were first and prior liens to those of the Bank. Insofar as this appeal is concerned, we do not consider it necessary to go into the details of the various claims and rights adjusted by the court other than the controversies between the Bank and those who have appealed. The judgment of the court covers twenty-two pages of the transcript, but the greater part of it is unimportant to a discussion of the points before us.

Back of the controversy involved here, some of the pertinent undisputed facts are: That all of the property involved belonged to Mrs. Gertrude Emery Wilson prior to her death on April 10th, 1935. When Mrs. Wilson died, she left surviving her only two daughters, Mrs. Helen Gardner and Mrs. Emma Simmons. On May 28th, 1935, Mrs. Gardner and Mrs. Simmons were, by order of the Probate Court, in Cause No. 12423, appointed temporary administratrices of the estate; they served in that capacity until they were succeeded by First National Bank of Fort Worth. On November 22nd, 1935, Mrs. Emma Simmons, for herself and in behalf of her four children, applied to the County Court for the probate of a will of Mrs. Gertrude Emery Wilson. This action bore docket number 12603. By the terms of the proposed will, among other things, it devised certain remainder interests to the minor children of both Mrs. Simmons and Mrs. Gardner. Guardians ad litem were appointed by the court to represent those interests. Mrs. Gardner, the sister of proponent, contested the probate of the will; on May 8th, 1936, judgment was entered denying the probate. No appeal was perfected from that judgment.

On October 11th, 1937, an order was entered in cause No. 12423 (the administration proceeding) appointing T. Oscar Vogel permanent administrator of the estate of Mrs. Gertrude Emery Wilson, deceased; the order recites a necessity for permanent administration and that Vogel was appointed pursuant to an appearance and renouncement of prior rights thereto by Mrs. Gardner and Mrs. Simmons. The estate of Mrs. Wilson owed many debts to various persons. Claims were filed with the administrator Vogel allowed and classified by the court, which, along with unpaid taxes, aggregated nearly $12,000. Mrs. Simmons owed the Bank something over $4,000 on a judgment, secured by whatever interest she had in her mother's estate. The Gardners assumed the payment of that judgment to the Bank. The administrator made application to the court for an order to sell the property of the estate in his hands to pay the debts. All requisite and pertinent facts appear to have been disclosed and the court ordered the property sold at private sale for payment of the established debts. Sale was made by the administrator, under orders of the court, to Mrs. Gardner. She and her husband borrowed the money from the Bank to pay the purchase price. They executed their note for $15,716.10, and simultaneously executed their deed of trust lien on the property so purchased to secure payment to the Bank. By mutual agreement between the parties, the Bank disbursed the funds in checks payable jointly to the administrator, the claimant of each debt and to the Gardners. When payments were all made, the aggregate amounts lacked approximately $235 being as much as the note and credit was given on the note for that amount. As payments were made to claimants the Bank took assignments from each for their claims against the estate of Gertrude Emery Wilson, deceased. For reasons shown in the record, about which no point is made, the administrator executed four deeds to Mrs. Gardner, two of them dated March 1st, 1938, one on July 5th, 1938, and another on August 10th, 1938. All applications for sale, reports and orders of the court in each instance appear regular as provided by the statutes. There are recitations in the deeds of the dates of the application for sale, reports and all orders thereon prior to the dates of the deeds.

On August 8th, 1938, the 67th District Court in Tarrant County issued its writ of certiorari in cause No. 12603, pending in Probate Court of said county, for the purpose of reviewing proceedings had on May 8th, 1936, when the said Probate Court refused to probate the will of Mrs. Gertrude Emery Wilson. On a hearing de novo the District Court denied probate of the will; the Court of Civil Appeals affirmed the judgment of the District Court, writ of error was granted by the Supreme Court, and thereafter error was confessed by defendants in error and a joint request was made to the Supreme Court for a reversal of the case to the District Court. It was accordingly reversed, and on February 18th, 1941, the District Court admitted the will of Gertrude Emery Wilson to probate and certified the order to the county court for observance.

The will provides for payment of debts, creates a trust in a certain percentage of the proceeds arising from the estate for Mrs. Gardner and Mrs. Simmons, with remainders to Charles G. Hodges, a son of Mrs. Gardner, and to Carolee, Mary Jane, Helen and June Simmons, the children of Mrs. Emma Simmons.

The note sued on and the lien sought to be foreclosed are those executed by W. Scott Gardner and wife, Helen Gardner, to the Bank on June 25th, 1938, when Vogel, the administrator, sold the property to Mrs. Gardner.

All defendants filed a plea in abatement as against the Bank's suit; the plea was based upon an allegation that all orders of the Probate Court appointing the permanent administrator, order to sell the property and all acts of the administrator, especially those purporting to sell the property to Mrs. Helen Gardner, were void. An alternative plea was urged substantially, that if the plea in abatement should be overruled, then the court should continue the present case until such time as the Probate Court could administer the estate of Mrs. Wilson, deceased, under the provisions of her will, which had been admitted to probate.

The case was tried to the court. The pleas in abatement and the motion to continue the case until the estate could be administered under the will were overruled. When these rulings were made, counsel for the Gardners and Charles G. Hodges, with permission of the court, withdrew from the court room and did not further participate in the trial. The court heard all testimony and rendered judgment for the Bank on its note with a foreclosure of the lien as against all defendants and interveners, except in the instances in which equities were adjusted between the parties as to priority of liens. There is no complaint here as to the matters thus determined. W. Scott Gardner, his wife, Helen Gardner, Charles G. Hodges, Mary Jane Simmons, Helen Simmons, and June Simmons have perfected this appeal.

Appellants base their appeal upon points involving, (1) error of the trial court in overruling their pleas in abatement, (2) the district court was without jurisdiction to determine the validity of the deed of trust lien sought to be foreclosed by the Bank, and (3) error of the court in refusing to continue this case until the probate court could hear and make orders under the will to executors or administrators thereunder with will annexed.

Appellants, who filed separate briefs, do not agree in all respects; the Gardners seem to concede that the trial court, in this collateral attack, could not review orders made by the Probate Court in the administration proceedings, wherein Vogel received his appointment and subsequent orders resulting in the sale of the lands to Mrs. Gardner for payment of the debts owing by the estate of Mrs. Wilson. While upon the other hand counsel for Hodges and the Simmons children assert that all those orders were absolutely void and that the court could and should ignore them as such.

It is unnecessary to cite authorities in support of the well settled rules, (1) that the Probate Court of a county in which deceased's property is situated, in cases like this, has potential, and in some respects exclusive, jurisdiction in matters pertaining to the estate, and (2) that all orders, judgments and decrees made by...