Hancock v. Booker
| Decision Date | 13 November 1980 |
| Docket Number | No. 6236,6236 |
| Citation | 608 S.W.2d 811 |
| Parties | Don HANCOCK, Successor Independent Executor of The Estate of Amanda Johnson, Deceased, Appellant, v. Lee Etta BOOKER, Appellee. |
| Court | Texas Court of Appeals |
This is an appeal by appellant Hancock from judgment of the trial court awarding appellee Booker title to a 50 X 150 foot lot; awarding appellee Booker $11,000 insurance proceeds from the destruction by fire of the house on such lot; and decreeing that the Estate of Amanda Johnson take nothing against appellee Booker.
This case involves the Estate of Amanda Johnson, deceased, who died March 18, 1977, at age 85, and is a consolidation of three separate suits between the parties. Charles O. Hill and Lee Etta Booker were cousins of the deceased.
Cause 25066, "In the Matter of the Estate of Amanda Johnson, deceased" was the purported appeal of the probate of the will of Amanda Johnson from County Court of Hill County to the District Court. Amanda Johnson's will was admitted to probate in County Court and Charles O. Hill was appointed Independent Executor of such estate. A former attorney retained by Lee Etta Booker "appealed" the order probating the will to District Court. On September 12, 1977, the District Judge signed an order admitting the will of Amanda Johnson to probate; many hearings were held and many orders were issued, including an order on September 21, 1977, entitled "Order to Turn Over Property", which ordered Lee Etta Booker to deliver to Charles O. Hill, Executor of the Estate of Amanda Johnson, all property of the Estate "not destroyed by fire"; $29,203.21; bank and savings and loan accounts; "within 30 days". On September 28,1977, the District Court issued an injunction ordering Booker to turn over all property of the Estate of Amanda Johnson to Hill, Executor of the Estate. Thereafter Hill died, and the District Court on March 9, 1978 appointed Honorable Don Hancock, who was attorney for Hill, "Successor Independent Executor of the Estate of Amanda Johnson".
Cause 25058, "Charles O. Hill v. Lee Etta Booker", was filed April 1, 1977, in the District Court by Hill against Booker to set aside a deed, dated February 28, 1977, from Amanda Johnson to Booker, to a house and lot in the City of Hillsboro. Hill alleged among other matters that the description in the deed was fatally defective. The trial court rendered summary judgment for Hill and this Court reversed and remanded the case to the trial court. 1
Cause 25307, "Gulf Insurance Company v. Lee Etta Booker and Don Hancock, Successor Independent Executor of the Estate of Amanda Johnson ", was a Bill of Interpleader filed in the District Court by Gulf Insurance Company against Booker and Hill and alleged Gulf issued a policy of insurance for $11,000 on a house at 326 Third Street, Hillsboro, Texas (the house on the lot involved in cause 25058); that the house had been destroyed by fire; that Gulf owed the $11,000; that Booker and Hill both claimed the money; that Gulf tendered the $11,000 into court; asked that Booker and Hill be cited to establish their respective claims; that Gulf be granted an attorney's fee and be absolved from further liability.
On December 14, 1979, on motion for Hancock the trial court consolidated causes 25058, 25307 and 25066 and decreed the consolidated suit proceed under the number of cause 25066.
On February 4, 1980, appellant Hancock filed new pleadings in the consolidated causes alleging: that he was Successor Independent Executor of the Estate of Amanda Johnson, deceased; that Amanda died March 18, 1977; that at her death she owned a 50 X 150 foot lot at 326 Third Street, Hillsboro, Texas, on which her house was situated; that she had a fire insurance policy with Gulf Insurance Company; that no legal representative of her Estate authorized any assignment of the policy; that the policy was assigned shortly before the fire to Lee Etta Booker at Booker's request; that the house burned July 27, 1977; that the Estate owned the insurance policy, and that the assignment to Booker was ineffective. Appellant prayed judgment for the $11,000 proceeds.
Alternatively appellant alleged the Executor received judgment against Booker in cause 25066 for $29,203.21 which was unpaid; and prayed judgment for the $11,000 in partial satisfaction of such prior judgment.
Appellant further plead Lee Etta Booker obtained a deed from Amanda Johnson February 28, 1977; that such deed is invalid because of defective description and should be cancelled as a cloud on Executor's title. Appellant then plead in trespass to try title that the Estate of Amanda Johnson is owner of the 50 X 150 foot lot (describing same); that Booker unlawfully entered upon the land and dispossessed Hill. Appellant prayed judgment for the land.
Appellee Booker filed amended answer in the consolidated action, excepting to the jurisdiction of the trial court to proceed in matters pertaining to the Estate of Amanda Johnson; that the policy issued by Gulf on the house had been assigned by the company to her; that appellee denies any indebtedness to the Estate of Amanda Johnson; that she pleads "Not Guilty" to the allegations in Trespass To Try Title. Appellee prayed judgment for the insurance proceeds, and that her title be quieted to the premises at 326 Third Street, Hillsboro, Texas.
Trial was before the Court which rendered judgment: reciting that causes 25307, 25066 and 25058 were consolidated; that appellee excepted to the jurisdiction in cause 25066 (the appeal from order of the County Court probating the will of Amanda Johnson); found the District Court had no jurisdiction in such cause, sustained the exception, 1) dismissed cause 25066, and set aside all orders entered therein prior to the consolidation ; reciting the Estate of Amanda Johnson had not proved title to the 50 X 150foot lot (describing same); 2) decreed title to such vested in Booker ; 3) decreed the Estate of Amanda Johnson take nothing by its claim against Booker ; found the Estate of Amanda Johnson proved no right to the proceeds of the $11,000 insurance policy; found Booker had been assigned the policy by an agent of the company and entitled to the proceeds; 4) decreed the $11,000 paid to Booker (less $300 to Gulf for attorney's fee).
Appellant Hancock, Successor Independent Executor of the Estate of Amanda Johnson appeals on 40 points presenting 3 basic contentions.
Amanda Johnson, age 85, owned the house and lot at 326 Third Street in Hillsboro, Texas. The house was insured for $11,000. Amanda deeded the property to her cousin Lee Etta Booker on February 28, 1977. Amanda died March 18, 1977. Charles O. Hill, another cousin of Amanda, filed Amanda's will (in which he was beneficiary) for probate in the County Court of Hill County, which probated the will and named Hill Executor. Booker who had contested probate "appealed" to District Court. District Court "probated" the will, and on September 21, 1977 "ordered" Booker to turn over to the Executor all assets of the estate including an item of $29,203.21, and thereafter by injunction again ordered her to turn over property and money of the estate to the Executor.
On May 11, 1977, the Hillsboro agent of Gulf assigned the insurance policy on the house to Booker,...
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