In re Supples' Estate

• Decision Date: 21 June 1939
• Docket Number: No. 10526.,10526.
• Citation: 131 S.W.2d 13
• Parties: In re SUPPLES' ESTATE.
• Court: Texas Court of Appeals

Page 13

131 S.W.2d 13

In re SUPPLES' ESTATE.

No. 10526.

Court of Civil Appeals of Texas. San Antonio.

June 21, 1939.

Rehearing Denied July 19, 1939.

Appeal from District Court, Seventy-Third Judicial District, Bexar County; Jno. F. Onion, Judge.

Proceeding in the matter of the estate of Michael L. Supples, N. C. M., wherein A. T. Forst, as administrator of the estate of Michael L. Supples, deceased, filed a bill of review to set aside an order of the probate court approving certain expenditures made by John T. Hildebrandt, as guardian of the estate of Michael L. Supples, N. C. M., and by Josephine Hildebrandt, as a subsequent guardian, and to set aside an order of the probate court approving the final account of John T. Hildebrandt, former guardian, then deceased, which was filed on his behalf by his wife, Josephine Hildebrandt. From the action of the probate court in sustaining the bill of review and entering an unsatisfactory order, Josephine Hildebrandt and others appealed to the district court where the proceeding was consolidated with an appeal from an order sustaining exceptions to the final account of Josephine Hildebrandt, guardian of the estate of Michael L. Supples, N. C. M., and ordering her to restate her final account. From a judgment of the district court dismissing the bill of review, A. T. Forst, as administrator, appeals.

Affirmed, provided that Josephine Hildebrandt file a remittitur in the sum of $191.71.

D. H. Fly, of Hondo, and John P. Pfeiffer, of San Antonio, for appellant.

Spears, Conger, Baskin & Spears, Johnson & Rogers, R. H. Mercer, and Martin S. Tudyk, all of San Antonio, for appellee.

MURRAY, Justice.

This suit is the consolidation of two matters originating in the Probate Court of Bexar County.

One of the matters in the probate court was in the nature of a bill of review seeking to set aside an order of the probate court dated January 22, 1936, approving certain expenditures made by John T. Hildebrandt, as guardian of the estate of Michael L. Supples, N. C. M., as well as certain expenditures made by Josephine Hildebrandt as a subsequent guardian of M. L. Supples, N. C. M., and further seeking to set aside an order dated January 28, 1936, of said probate court approving the final account of John T. Hildebrandt, former guardian, then deceased, which was filed on his behalf by his wife, Josephine Hildebrandt. The probate court sustained the bill of review and entered an order setting aside the order of January 22, 1936, and the order of January 28, 1936, and appeal from this order was taken to the District Court of Bexar County, 73rd Judicial District, by Josephine Hildebrandt, Aetna Casualty & Surety Company, surety on the bond of John T. Hildebrandt, as guardian, and the Maryland Casualty Company, as surety on the bond of Mrs. Josephine Hildebrandt as a subsequent guardian of the estate of Michael L. Supples, N. C. M.

The other matter was an appeal from an order dated August 25, 1937, sustaining some of the exceptions to the final account of Josephine Hildebrandt, guardian of the estate of Michael L. Supples, N. C. M., and ordering her to restate her final account.

These two matters were consolidated in the District Court and heard before the court, without the intervention of a jury. Judgment was entered dismissing the bill of review for want of jurisdiction, because there was a lack of necessary parties, and approving the final account of Josephine Hildebrandt, guardian, after requiring a remittitur of $109.08. The judgment further provided that the two orders of the probate court, cancellation of which were sought by the bill of review, should not be disturbed in any respect.

From this judgment A. T. Forst, as administrator of the estate of Michael L. Supples, deceased, has prosecuted this appeal.

The trial judge made and filed the following findings of facts:

"Preliminary Statement

"The record before the Court indicates that Michael L. Supples was adjudged a person of unsound mind by the Bexar County Probate Court in June, 1933; that on or about the 19th day of June, 1933, John T. Hildebrandt was appointed guardian of the estate of Michael L. Supples, N. C. M., at which time he took his oath of office and gave a bond as required by law, with Aetna Casualty & Surety Company as surety; that said John T. Hildebrandt remained guardian of said estate until the time of his death on August 18, 1934; that upon the death of the said John T. Hildebrandt, his wife, Josephine Hildebrandt, made an application to be appointed guardian of the estate of Michael L. Supples, N. C. M., and thereafter on the 4th day of September, 1934, was appointed such guardian, took her oath of office and gave a bond as required by law, with the Maryland Casualty Company as surety; that thereafter on January 22, 1936, the Probate Court of Bexar County, Texas, entered an order approving certain expenditures made by John T. Hildebrandt, guardian deceased, as well as certain expenditures made by Josephine Hildebrandt, guardian of said estate, without an alleged prior authorization of the Bexar County Probate Court; that thereafter on January 28, 1936, the Bexar County Probate Court entered an order approving the Final Account of John T. Hildebrandt, guardian deceased, which was filed on his behalf by his wife, Josephine Hildebrandt; that thereafter said Josephine Hildebrandt continued to be guardian of said estate until the time of the death of the said Michael L. Supples, N. C. M., on January 31, 1937; that 2 weeks later, on February 15, 1937, Josephine Hildebrandt filed her Final Account in said estate; that thereafter on the 24th day of February, 1937, A. T. Forst was appointed administrator of the estate of Michael L. Supples, deceased, at which time he took the oath of office, gave bond and in all other things qualified as required by law; that on the 13th day of May, 1937, said administrator filed an Application for a Bill of Review, joining therein Josephine Hildebrandt, the guardian, and the surety on her bond, the Maryland Casualty Company, and also the Aetna Casualty & Surety Company, which had been surety on the bond of John T. Hildebrandt, deceased guardian; that said Bill of Review sought to set aside the above and foregoing mentioned order entered by the Probate Court on January 22, 1936, approving certain expenditures made by the deceased guardian, John T. Hildebrandt, and the living guardian, Josephine Hildebrandt, as well as seeking to set aside the order of the Probate Court approving the Final Account of John T. Hildebrandt, deceased, filed on his behalf by Josephine Hildebrandt; that on the 18th day of August, 1937, said administrator also filed his Second Amended exceptions to the Final Account filed by Josephine Hildebrandt, guardian of said estate; that thereafter on August 3, 1937, said Application for a Bill of Review came on for a hearing and the Probate Court set aside the order of January 22, 1936, approving certain expenditures and also set aside the order entered by it on January 28, 1936, approving the final account of John T. Hildebrandt, guardian deceased, to which action of the Court said Josephine Hildebrandt, guardian, Maryland Casualty Company and Aetna Casualty & Surety Company gave notice of appeal and duly filed their appeal bonds to this District Court; that thereafter on the 25th day of August, 1937, came on for a hearing said administrator's exceptions to the Final Account of Josephine Hildebrandt, guardian, at which time the Probate Court entered an order sustaining some of said special exceptions and ordering said guardian to re-state her Final Account, to which action of the Court, said Josephine Hildebrandt and Maryland Casualty Company duly excepted and gave notice of appeal to this Court and in due time filed their appeal bonds and perfected their appeal to this Court; that thereafter on the 21st day of March, 1938, came on for a hearing the motion of said Administrator to consolidate all of said appeals and to try all the matters in controversy in one case, which motion was by this Court in all things granted.

"Findings of Fact and Conclusions of Law

"1. On March 21, 1938, came on for a hearing the Administrator's Application for a Bill of Review, and also Josephine Hildebrandt's Final Account in said guardianship, upon the consolidated appeals as aforesaid. The introduction of evidence by all parties concerned consumed two days, i. e. March 21st and 22nd, 1938. At end of the second day all parties having closed their evidence in the consolidated cases, it was suggested by the parties before the Court and agreed by all of them in open court that said case was closed for all purposes and that the court would not thereafter re-open said case, either for the filing of additional pleadings, or for the introduction of further evidence, or for any other purpose, which agreement between all the parties was assented to by the Court, at which time the court further instructed the attorneys for all parties to present their argument to the Court on the following day, which was Wednesday, March 23, 1938.

"2. On the opening day of the trial, (March 21, 1938), the Administrator A. T. Forst, put on his evidence in support of his Application for a Bill of Review, seeking to set aside the following mentioned orders of the Probate Court: (a) `Order Approving Certain Hereinafter Listed Expenditures,' dated January 22, 1936, and (b) `Order Approving Final Account of Deceased Guardian,' dated January 28, 1936; after introducing his evidence...