Gill v. Everman

• Decision Date: 06 December 1900
• Citation: 59 S.W. 531
• Parties: GILL v. EVERMAN.
• Court: Texas Supreme Court

59 S.W. 531

GILL v. EVERMAN.

Supreme Court of Texas.

December 6, 1900.

Certified question from court of civil appeals of Second supreme judicial district.

Action by Turner W. Gill, guardian, against Jacob Everman, guardian of Maude Gill and others, minors. On certified question from court of civil appeals.

Green & Hayworth, for appellant. Robt. E. Cofer, for appellee.

GAINES, C. J.

This case comes to us upon a certified question. The certificate is as follows: "At our last term the judgment in this case was reversed, and the cause remanded for a new trial; but a motion for rehearing was filed, and is now pending, and, inasmuch as considerable doubt has arisen with some of us as to the correctness of our decision on the original hearing, we deem it advisable to certify to your honors for decision the main question involved in this motion; that is, whether or not the transcript set out in our original opinion filed June 16, 1900, showed that appellee had been appointed and qualified as the guardian of the estate of Maude and Lizzie Gill, as provided in article 2753 of our Revised Statutes, to which opinion reference is made for statement of the case and of the question certified, and it is ordered that the opinion, briefs, motion for rehearing, and transcript accompany this certificate." The following is the transcript to which reference is made in the certificate:

"In the Matter of the Estate of Marcus Gill, Deceased. In the Bourbon County Court. In Probate, March Term. March 6, 1899. Transcript of the record in the above-entitled cause, including waiver, order for guardian, and guardian's bond, to wit:

"`Waiver. Feby. 25, 1899. Hon. W. M. Purnell, J. B. C. C.: I hereby waive my right to qualify as guardian of my two children, Maude and Lizzie Gill, aged, respectively, 7 and 5 years, and request that my cousin Jacob Everman be permitted to qualify as such. Mrs. Mary Gill.'

"`Order for Guardian. Mrs. Mary Gill, widow of Marcus Gill, deceased, filed her waiver herein, and, on motion, it is ordered that Jacob Everman be, and he is hereby, appointed guardian of Maude Gill and Lizzie Gill, infants under the age of fourteen years, and heirs of Marcus Gill, deceased. Wherefore he took the oath required by law, and with D. L. Robbins and H. C. Gillispie, his sureties, executed bond to the commonwealth of Kentucky, conditioned agreeably to law.'

"`Guardian's Bond. The Commonwealth of Kentucky, Bourbon County Court. Whereas, Jacob Everman has been appointed by the county court of Bourbon county and has qualified as guardian of Maude Gill and Lizzie Gill, infants under the age of fourteen years, and heirs of Marcus Gill, deceased: Now we, Jacob Everman, as principal, and D. L. Robbins and H. C. Gillispie, his sureties do hereby covenant to and with the commonwealth of Kentucky that the said Jacob Everman will faithfully discharge the trust of guardian to said minors in all respects as provided by law. Signed this 6th day of March, 1899. Jacob Everman. D. L. Robbins. H. C. Gillispie. [U. S. Stamp, 50 cts.]'"

The transcript is accompanied by the respective certificates of the clerk and judge of the court, as is required by the act of congress and the statutes of this state.

Article 2753 of our Revised Statutes provides that, "where a guardian and his ward are nonresidents, such guardian may file in the county court of any county a full and complete transcript from the records of a court of competent jurisdiction where he and his ward reside, showing that he has been appointed and has qualified as guardian of the estate of such ward; which said transcript shall be certified by the clerk of the court in which the proceedings were had, under the seal of such court, if there be one, together with a certificate from the judge, chief justice or presiding magistrate of such court, as the case may be, that the attestation to such transcript is in due form; and upon the filing of such transcript, the same may be recorded, and the guardian shall be entitled to receive letters of guardianship of the estate of such minor situated in this state, upon filing a bond with sureties, as in other cases, in double the amount of the estimated value of such estate." Clearly, under this provision, a nonresident applicant for letters of guardianship must show that he has been duly appointed and has duly qualified as guardian of the estate of the minor in some other state or country, and it is equally clear that the transcript from the county court of Bourbon county, Ky., exhibited in evidence in this case, does not expressly show such appointment and qualification. But, in order to maintain the affirmative of the question certified, it is contended —First, that under the laws of Kentucky a guardian appointed by the county court becomes guardian both of the person and estate of the ward, and that, it being the judgment of a court of a sister state, we should take judicial knowledge of those laws; and, in the second place, that, if this cannot be done, the transcript is sufficient, even under our own laws, to show affirmatively, though impliedly, that the appointment and qualification were as guardian of the estate of the wards.

In support of the first proposition, we are cited to the case of State v. Hinchman, 27 Pa. St. 483. The case is directly in point, and supports the contention, and was followed by the supreme court of Rhode Island in the case of Paine v. Insurance Co., 11 R. I. 411. The decisions in these cases proceed upon the theory that, since the laws of the United States require the courts of a state to give "full faith and credit" to the judicial proceedings of every other state, the courts will assume to know the laws of such other state, so far as is necessary to ascertain the faith and credit due to such proceedings. But this is a question of the construction of a federal law,—a question upon which the decision of the supreme court of the United States is of paramount authority, —and that court has distinctly repudiated the doctrine of the Pennsylvania case. Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 535; Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. 398, 30 L. Ed. 519. Not only this, but our own court has decided the point adversely to the contention of appellee's counsel. Porcheler v. Bronson, 50 Tex. 555. The case of Henry v. Allen, 82 Tex. 35, 17 S. W. 515, does not hold the contrary. The ruling there was, in effect, that the court would presume that the special judge before whom the case was tried in another state was regularly qualified to try the cause, and that it was not necessary to plead and prove the laws...