Kirk v. Head
| Decision Date | 18 June 1941 |
| Docket Number | No. 7671.,7671. |
| Citation | 152 S.W.2d 726 |
| Parties | KIRK et al. v. HEAD et al. |
| Court | Texas Supreme Court |
Anderson & Kelly, Austin F. Anderson, and Keith F. Kelly, all of Fort Worth, for defendants in error.
The opinion of the Court of Civil Appeals makes a complete detailed statement of the facts and issues of this case. In the interest of brevity we refer to and adopt the same. 132 S.W.2d 125.
This is a land partition suit. It was filed in the District Court of Tarrant County, Texas, by Betty Kirk and several other joint owners of the estate of Mary C. Walling, deceased, against Ollie Hurst and several other joint owners of such estate, to partition the same. The suit was filed and tried during the four-year administration period fixed by our probate statutes. The Walling estate consists of a lot in Fort Worth, Tarrant County, Texas, and 275 acres of land in LaSalle County, Texas. Betty Kirk and Ollie Hurst each asserted a claim against the Walling estate, and prayed it be allowed by the court and fixed as a lien.
On final trial in the district court, Betty Kirk's claim, in the sum of $278.25, and Ollie Hurst's claim, in the sum of $2,138.48, were allowed and fixed as liens. The lands were ordered sold by receiver, and the proceeds divided among seven heirs, after the payment of the two claims above indicated. On appeal by Betty Kirk et al. to the Court of Civil Appeals at Fort Worth, the judgment of the district court was affirmed. Betty Kirk et al. bring error.
By their first assignment of error plaintiffs in error contend that the existence of the two claims above described, and their assertion in the district court, deprived that court of jurisdiction to try this case during the four-year administration period prescribed by our probate statutes for the taking out of administration on the estate of a decedent. It is settled that the district court is without jurisdiction to partition an estate of a deceased person within four years after the death of such person, unless it is pleaded and proved that no administration is pending on such estate, and that none is necessary. 13 Tex.Jur. 613; Youngs v. Youngs, Tex.Com.App., 26 S.W.2d 191; Cyphers v. Birdwell, Tex.Civ.App., 32 S.W.2d 937, writ refused. In spite of this rule, we think that the Betty Kirk and Ollie Hurst claims did not deprive the district court of jurisdiction in this case. They were part owners of the estate sought to be partitioned, and parties to such proceedings. Article 6082, R.C.S.1925, provides that any joint owner or claimant of real estate, or any interest therein, may compel a partition thereof. Article 6083 provides that such joint owner or claimant may file a petition in the district court. Such Article also defines what such petition shall contain. Article 6086 provides that upon a hearing of the cause the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided. Also, such Article provides that the court shall determine all questions of law or equity affecting the title to such land which may arise. To our minds, such statutes fully authorize the district court to partition the lands belonging to the estate of a deceased person within the four years' administration period, if it is shown that no administration is pending and that none is necessary. If it is shown that the estate owes no debts, it is thereby shown that no administration is necessary. In this connection, we think that where it is shown that the only debts or claims owing by an estate are debts or claims owing to the joint owners thereof, the district court, in a partition suit between such joint owners brought within the four years' administration period, can adjust such debts or claims in such partition proceedings. This is because the statute (Article 6086) expressly authorizes the district court to determine all questions of law or equity affecting the title. Moore v. Moore, Tex.Civ.App., 31 S.W. 532, Id., 89 Tex. 29, 33 S.W. 217.
It appears that Betty Kirk et al. began this action in the district court by filing a petition which sought partition of the lands belonging to the Mary C. Walling estate. This petition described the lands, and asserted the claim of Betty Kirk as a lien against the same. This petition alleged that "at the time of the death of Mary C. Walling she left no will or any character of testamentary writings, and no administration has been taken out on her estate, and none is necessary, there being no debts against her estate."
After the filing of the above petition, these defendants in error answered the same. Such answer contains a general demurrer and a denial of all allegations contained in the petition of Betty Kirk et al except as may be pleaded in such answer. Such answer then alleges that: "Mary C. Walling died on or about December 23, 1935, without having executed any will, and without having provided any testamentary disposition of her said property or the payment of the above sums of money to this defendant; that there has been no administration on the estate of Mary C. Walling, deceased, and no administration therefor is necessary, because this defendant is and was the only creditor of said estate * * *." This answer sets up the cross action in favor of Ollie Hurst, wherein she asserted a claim against the estate of Mary C. Walling, and asked that it be established as a lien. This claim was made up of several different items. This pleading contains a prayer for partition, for the establishment of the Ollie Hurst claim as a lien, for the adjustment of equities, and for general and equitable relief.
After the filing of the above answer, Betty Kirk et al. took a nonsuit. This action amounted to an abandonment of the suit by Betty Kirk et al. as plaintiffs. Also, it amounted to an abandonment of their petition...
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