Kent v. McDaniel

• Decision Date: 09 June 1915
• Docket Number: (No. 5505.)
• Citation: 178 S.W. 1006
• Parties: KENT v. McDANIEL et al.
• Court: Texas Court of Appeals

178 S.W. 1006

KENT v. McDANIEL et al.

(No. 5505.)

Court of Civil Appeals of Texas. Austin.

June 9, 1915.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Proceeding by W. E. McDaniel, as temporary administrator of J. B. McDaniel, deceased, against Mrs. Kate L. Kent and another, for the appointment of a trustee in the place of said J. B. McDaniel in which J. H. Weatherby was appointed as trustee. From the judgment, the named defendant appeals. Affirmed.

Clendenen & Simmons, of Ft. Worth, for appellant. T. H. Jackson and Morrow & Morrow, all of Hillsboro, for appellees.

Nature and Result of the Case.

JENKINS, J.

We adopt from appellant's brief the following statement of the nature and result of this case:

"This proceeding was instituted by W. E. McDaniel in the district court of Hill county, alleging that he was temporary administrator of the estate of J. B. McDaniel, deceased, and that at the time of his death J. B. McDaniel was in possession of trust funds amounting to about $11,000 belonging to Dudley M. Kent, Jr., a minor, alleged to reside in Tarrant county, Tex., and that Mrs. Kate L. Kent, residing in Tarrant county, Tex., was the guardian of said minor. Plaintiff's petition prayed for citation to Dudley M. Kent, Jr., the minor, and to Mrs. Kate L. Kent, and prayed for the appointment of a suitable person as trustee of the estate of said minor, and offering to account to such trustee for the said estate and to deliver the same to such trustee under the direction of the court. In obedience to said citation Mrs. Kate L. Kent appeared for herself and as next friend and guardian of the person of Dudley M. Kent, Jr., and pleaded a want of jurisdiction in the district court of Hill county to appoint a trustee for said minor, and alleging that the county court of the proper county alone had jurisdiction to appoint a guardian of the estate of said minor. The court, over the objection of appellants, appointed T. H. Jackson guardian ad litem for said minor, and upon the suggestion of the said guardian ad litem, and over the protest of appellants, appointed J. H. Weatherby as trustee of the estate of said minor, and ordered and adjudged that the estate of said minor be delivered by W. E. McDaniel to the said Weatherby upon his execution of a bond payable to the district judge of Hill county in the sum of $22,000. Appellant, Kate Kent, for herself and as next friend for said minor, made a motion for a new trial, which was overruled, to which appellant excepted and gave notice of appeal to this court, and in due time filed her appeal bond and brought the case to this court for revision."

Findings of Fact.

We adopt the following agreed facts, which were admitted by all parties in open court:

"(1) That J. B. McDaniel duly qualified as independent executor of the estate of Ceyota McLain, deceased, and fully administered said estate; (2) that the said J. B. McDaniel accepted the trust imposed upon him under the will of Ceyota McLain; (3) that the said J. B. McDaniel, while acting as trustee for the said D. M. Kent, Jr., under the terms of the said will of the said Ceyota McLain, died on the 29th day of June, 1913, having in his possession at the date of his death $11,328.13, the property of said trust estate; (4) that the said J. B. McDaniel left a will, duly probated by the probate court of Hill county, Tex., in which W. E. McDaniel is named as executor of his estate, and that the said W. E. McDaniel duly qualified as such executor; (5) that the said W. E. McDaniel, as such executor, has taken possession of the estate of the said J. B. McDaniel, deceased, and has possession of the said $11,328.13 held by the said J. B. McDaniel, deceased, at the date of his death as trustee under the said will of the said Ceyota McLain; (6) that the defendant, Kate Kent, is the mother of Dudley M. Kent, a minor of the age of 9 years; that said defendant, Kate Kent, is a feme sole, having procured a divorce from her husband, D. M. Kent, Sr., in the district court of Tarrant county, Tex.; that under the decree granting said divorce, the said Kate Kent was awarded the custody of said minor, and that said minor resides with the said Kate Kent in the city of Ft. Worth, Tarrant county, Tex."

The appellant, Mrs. Kate L. Kent, is the only child of Mrs. Ceyota McLain, deceased, and is the mother of Dudley M. Kent, Jr., who is her only child and who is about 10 years of age. J. B. McDaniel brought a suit in the district court of Hill county to have the will of Mrs. McLain construed. We make the following excerpt from the judgment in that suit:

"* * * A jury having been waived, all matters of fact as well as of law were submitted to the court, and, the pleadings, evidence, and argument having been heard by the court, etc., * * * the court is of the opinion that the following instructions are proper, and the same are hereby given, to wit: `The trustee will be governed by the following instructions of the will of Mrs. Ceyota McLain: He will expend from the trust fund and the increase thereof for the education of D. M. Kent, Jr., such amounts as in his judgment are reasonably necessary to defray the actual expenses of D. M. Kent, Jr., such expense to include and to include only tuition, board, school books, and other incidentals, proper clothing and reasonable medical attention. He shall pay such expenses as they accrue to the persons to whom they are due, taking from such persons proper vouchers and receipts, except the trustee may allow the said D. M. Kent, Jr., such a sum of money as in his, the trustee's, judgment will reasonably take care of minor incidental expenses not recurring in their nature.'"

No appeal was taken from said judgment.

Opinion.

The first issue raised by appellant's assignments of error is as to whether the district court had jurisdiction of the subject-matter of this suit. It is the contention of appellant that the personal property bequeathed to Dudley M. Kent, Jr., belongs to the estate of said minor, and, the trustee appointed by the will to control the same having died, the control thereof belongs to the probate court of the proper county, to be exercised by the appointment of a guardian, and that the district court has no original jurisdiction in such matter. In support of this contention appellant cites article 5, § 16, of the Constitution of Texas, which gives the county court original jurisdiction in probate matters, including the appointment of guardians for the estates of minors; and also article 4053, R. S., which prescribes the duties of county judges in matters of guardianship pending in their courts. Appellant also cites Prince v. Ladd (Sup.) 15 S. W. 159; In re Estate of Grant, 93 Tex. 68, ...