Hutcherson v. Hutcherson
| Decision Date | 29 November 1939 |
| Docket Number | No. 10895.,10895. |
| Parties | HUTCHERSON v. HUTCHERSON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Anderson County; Sam Holland, Judge.
Action by George W. Hutcherson and others against J. S. Hutcherson, as independent executor of the estate of J. D. Hutcherson, deceased, for order directing defendant to deliver the residue of the property of the estate. From an order in favor of plaintiffs, defendant appeals.
Reversed and cause dismissed.
Clay Cotten, and J. Lee Bilberry, both of Palestine, for appellant.
W. R. Petty, of Palestine, for appellees.
This is an appeal in an action originally brought by appellees, G. W. Hutcherson, Mrs. Carrie Oldham, and Mrs. Bertha Dodson, against appellant J. S. Hutcherson, as independent executor of the estate of J. D. Hutcherson, deceased, in the form of an application filed in the probate court of Anderson County, Texas, for an order directing the said J. S. Hutcherson, as such independent executor, to deliver to appellees the residue of the property of said estate.
Appellant answered by pleas in abatement to the jurisdiction of the county court and by general demurrer and general denial.
The county court of Anderson County sustained said pleas in abatement and entered an order dismissing appellees' application. The case was appealed to the district court of Anderson County, which court overruled the said pleas in abatement, proceeded to hear the cause on its merits, and entered an order requiring appellant to deliver to appellees three notes, which constituted the residue of the property of said estate.
Appellant bases his appeal on the action of the district court in overruling his pleas to the jurisdiction of the county court, and contends that the provisions of testator's will conclusively show an intention on the part of testator that appellant, as such independent executor under his will, should handle his estate free of any action of the probate court.
J. D. Hutcherson died in Anderson County, Texas, leaving a will under the terms of which J. S. Hutcherson was appointed independent executor of his estate.
Said will was duly probated in cause No. 4044 in the county court of Anderson County, Texas, and J. S. Hutcherson was appointed independent executor of said estate and thereafter qualified by taking the oath as such executor. He subsequently filed an inventory, appraisement, and list of claims of said estate. The said will of J. D. Hutcherson named his four children George W. Hutcherson, Mrs. Carrie Oldham, Mrs. Bertha Dodson, appellees herein, and Mrs. Jewel Wilson, as his sole beneficiaries. It provided for one special bequest to Mrs. Jewel Wilson and that the remainder of the estate, after the payment of such bequest, should be equally divided between his said four children. At the time of the filing of the application upon which this appeal is based, all of the debts due by the estate had been paid, all land belonging to the estate had been partitioned among the devisees, and all assets of the estate had been liquidated, with the exception of the three notes referred to above, and the proceeds thereof had been paid over to the four children of the deceased.
The only question involved in this appeal is whether the county court had jurisdiction of this action brought by the devisees under said will against the independent executor thereof, requiring him to turn over to them the assets of said estate held by him as such independent executor.
The will of J. D. Hutcherson, deceased, omitting portions thereof immaterial to this appeal, is as follows:
Article 3436 of the Revised Statutes of 1925 reads: "Any person capable of making a will may so provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement and lists of claims of his estate."
In construing Article 3436, the courts of this state have uniformly held that a testator is vested with absolute power to select his own representative, subject only to the qualification that he be sane and twenty-one years of age, Shaffer et al. v....
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