In re Campbell's Estate

• Decision Date: 15 June 1944
• Docket Number: No. 11631.,11631.
• Citation: 181 S.W.2d 712
• Parties: In re CAMPBELL'S ESTATE.
• Court: Texas Court of Appeals

181 S.W.2d 712

In re CAMPBELL'S ESTATE.

No. 11631.

Court of Civil Appeals of Texas. Galveston.

June 15, 1944.

Rehearing Denied July 6, 1944.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Proceedings in the matter of the estate of Thomas Campbell, deceased. Appeal by L. J. Beall from a judgment of the district court, sitting without a jury in probate, approving an order and judgment of the county court setting aside a prior order of the county court approving the report of L. J. Beall as temporary administrator and appointing L. J. Beall as administrator of the estate and setting aside all other orders entered in the estate and dismissing the estate from the docket.

Affirmed.

P. Harvey, of Houston, for appellant.

Fouts, Amerman & Moore and W. J. Howard, all of Houston, amici curiæ.

GRAVES, Justice.

This appeal by L. J. Beall—under a cost-bond styling himself as administrator of the estate of Thomas Campbell, deceased, and made payable to unnamed appellees, as well as to the respective judges of the county and district courts of Matagorda County, the officers of court, and others—is from a judgment of the district court of Matagorda County sitting, without a jury, in probate on an appeal from the county court of Matagorda County, in material substance as follows:

"On this 31st day of January, 1944, in open court and at a regular term of the Court, came on to be heard on a trial de novo the appeal of L. J. Beall from the order and judgment of the County Court of Matagorda County, Texas, made and entered in said cause on the 30th day of December, 1943, setting aside the order of said Court made and entered on the 4th day of November, 1943, approving the report of L. J. Beall, as temporary administrator and appointing the said L. J. Beall as administrator of said estate, and setting aside all other orders entered in said estate, and dismissing said estate from the docket; and no jury having been demanded, and the matters and issues of fact as well as of law being submitted to the Court, and the Court having heard the evidence and argument of counsel and being in all things fully advised, is of the opinion that such appeal is not well taken, that the said County Court was without power and jurisdiction to appoint an administrator of said estate, and was authorized and empowered to set aside and annul the said order so entered in said County Court on the 4th day of November, 1943, appointing the said L. J. Beall administrator of said estate, as also all other orders entered in said estate, and dismissing said estate from the docket, and the action of the County Court in so doing is hereby approved; and it is therefore ordered, adjudged, and decreed that the said order of the said County Court, made and entered on the 4th day of November, 1943, approving the report of L. J. Beall as temporary administrator of said estate and appointing the said L. J. Beall as administrator of said estate and ordering letters of administration to issue to said L. J. Beall, as well as all other orders made and entered in said estate, be and the same are hereby set aside and annulled and shall hereafter be held for naught, and that said cause and estate be dropped from the docket of said County Court.

"It is further ordered that the said L. J. Beall pay all the costs in this appeal and proceedings, and that this order and judgment be, by the Clerk of this Court, certified to the said County Court for observance."

Appellant's points for a reversal here are, in epitome, these:

"First Point.

"The judgment of the County Court of Matagorda County rendered at the November term, 1943, appointing appellant administrator of the estate of Thomas Campbell, deceased, was a valid judgment on its face and on the record, and, at the expiration of said November term on December 26th, 1943, it became final and immune to collateral attack; the order entered thereafter, on December 30, 1943, by the County Judge of Matagorda County, in vacation, attempting to set aside the said judgment rendered at the November term, was coram non judice, and void; the District Court erred in rendering judgment that the County Judge, after the expiration of such November term, had the power to annul, vacate, and set aside the judgment rendered at the November term, granting administration on said estate and appointing appellant administrator.

"Second Point.

"The judgment of the district court should be reversed, because the appeal to it was from the order entered by the County Judge on December 30th, 1943, and the only matter before the district court for adjudication was the validity of that order; and the judgment of the district court holding that the judgment of the County Court, rendered at the November term, 1943, granting administration on the estate of Thomas Campbell, deceased, was void for want of jurisdiction, was a collateral attack upon said judgment, which is regular on its face and on the record.

"Fourth Point.

"The judgment of the County Court of Matagorda County, rendered on November 4, 1943, granting administration on the estate of Thomas Campbell, deceased, and appointing appellant administrator thereof, recites due service and necessity for administration, and all jurisdictional facts, which are conclusive on this collateral attack, and cannot be impeached by evidence aliunde.

"Fifth Point.

"The County Court of Matagorda County sitting in matters probate is a court of general jurisdiction and its judgments import absolute verity, and, after the term at which they are rendered expires, they can only be set aside by direct suit."

When the undisputed facts appearing in this record are looked to, it is determined that none of these presentments should be sustained.

In the first place, as the statement of facts brought up discloses, the district court had before it, not only all the successive proceedings so taken in the county court in the matter of the claimed estate, but also the full testimony of the judge of that court, before whom they had been taken, as to the attending facts, both upon his respective appointments—on merely the same showing—of the appellant as temporary and permanent administrator, and on his later setting them aside, and dismissing all then-pending orders and entries, on December 30th of 1943.

The gist of the cause thus presented to the trial court was this:

The appellant, a volunteer having no interest in or connection with the alleged estate sought to be administered, made an application to be appointed temporary administrator of the claimed estate of one Thomas Campbell, for the sole purpose of bringing a land suit in its behalf; it averred that Thomas Campbell was dead, that petitioner was informed and believed that he was a nonresident of Texas at the time of his death, that the time and place of his death was not known to petitioner; that at the time of his death Thomas Campbell owned an estate, consisting principally of real estate in Matagorda County, of the probable value of $250, which was then claimed and held adversely by other people under the statutes of limitation; that, therefore, a necessity existed for the immediate appointment of an administrator to recover such property for Campbell's estate, in order that the running of the statutes of limitation might be tolled; and that the petitioner is not disqualified.

Appellant, L. J. Beall, was appointed temporary administrator on September 14, 1943, and authorized to file suit to recover land. He immediately contracted with attorneys (the same ones now representing him on this appeal) to prosecute the suit, giving them an undivided fifty per cent of any recovery in land, or money, as a fee; thereafter an inventory was filed by him and his appointment as administrator was made permanent on November 4 of 1943, but without any further or additional showing. It appeared from the inventory so filed that the alleged estate of Thomas Campbell consisted of a claim to the "Northeast one-third (or about 1476 acres) of the Battle, Berry & Williams league on Linnville Bayou, in Matagorda and Brazoria Counties, Texas, conveyed to a trustee in trust for the deceased, in 1834." A copy of this deed was also offered in evidence, which showed that it was dated the 28th day of February, 1834.

It thus appears that the one instrument, upon which alone these administration proceedings were based, was 110 years old at the time appellant filed his application, the substantially-complete recitations of which have just been stated; it did not, however, contain any averments: (1) That four years had not elapsed since Campbell's death (the inevitable inference to the contrary being that vastly more time had intervened); (2) that there existed no debts due by the estate—especially none that there were two debts due, as required by R.S. Article 3370, Vernon's Ann.Civ.St. art. 3370; (3) none that he did not leave a will.

In a word, the sole objective declared upon was that—perforce alone of the alleged ancient instrument of February 28, 1834, purporting to convey land in trust for Thomas Campbell—deceased at the time of appellant's application for letters on his estate—he, appellant, a stranger without privity of any sort to Campbell, his estate, or the land, be given the power to file a suit to recover such land against third parties then alleged to be in possession thereof under a limitation claim thereto.

The County Judge's testimony was:

"Q. What evidence was offered in the County Court at the time of the presentation of that application for administration? A. The application was read, I think, at the time; when it was indicated that it was more than four years, I remarked: `What do you mean, this long a time after decedent's death?' And I think time was consumed to produce the statutes as have been brought forward in Vernon's (Article 3325), stripped of the emergency and the caption. I think Mr. Harvey had an instrument, and I think I accepted his...