Lozano v. Guerra, 10823.
| Decision Date | 15 May 1940 |
| Docket Number | No. 10823.,10823. |
| Citation | 140 S.W.2d 587 |
| Parties | LOZANO, Constable, et al. v. GUERRA et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Starr County; L. Broeter, Judge.
Suit by Manuel Guerra, Jr., and others, independent executors of the estate of Mrs. Virginia C. Guerra, deceased, against Bruno Lozano, Constable, and another for temporary injunction to restrain the constable from proceeding with the advertisement and sale of an undivided interest of G. A. Guerra, judgment debtor, in the deceased's estate. From an order granting a temporary injunction, Bruno Lozano, Constable, and another appeal.
Judgment reversed and temporary injunction dissolved.
Geo. L. Wideman and J. F. Carl, both of Edinburg, for appellants.
H. P. Guerra, Jr., of Rio Grande City, for appellees.
A judgment was rendered against G. A. Guerra in one of the district courts of Cameron County in favor of C. J. Liljestrand. An alias execution was issued on the judgment and delivered to Bruno Lozano, a constable of Starr County, who levied upon the undivided interest of G. A. Guerra in the real and personal estate of his mother, Mrs. Virginia C. Guerra, deceased. That estate is in the process of an independent administration. The independent executors, appellees here, brought this suit for a temporary injunction to restrain the constable from proceeding with the advertisement and sale of the undivided interest of G. A. Guerra in the estate. The temporary injunction was granted as prayed for, and the constable and Liljestrand have appealed from that order.
In her duly probated will, the testatrix devised all of her estate to her children, including G. A. Guerra, share and share alike. It was provided in the fourth paragraph of the will that the "estate be kept intact as an estate under the complete control and management of the independent executors for a period of five years from the date of (her) death, unless in the discretion of the executors it is advisable to distribute" it, or any part of it, at an earlier date. The five-year period has not expired, and the executors have made no attempt to distribute the estate among the beneficiaries. In the will absolute management of the estate was given the executors with full power to sell or dispose of the property in the course of their administration.
The interest of G. A. Guerra, although undivided, is a vested interest which is subject to sale under writ of execution. Gregg v. First Nat. Bank, Tex.Com.App., 26 S.W.2d 179; Caples v. Ward, 107 Tex. 341, 179 S.W. 856. It is true that the interest is subject to administration, and it may be defeated, as for example, by the taking of the property for the payment of the debts of the deceased; but the purchaser at execution would be charged with this knowledge, and must assume the risk. This possibility, however, does not change the character of the interest so as to render it exempt from execution.
It was contended by the executors in the court below that the sale under execution would interfere with and obstruct their administration of the...
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...designated are, except in three jurisdictions, uniformly held void. 42 A.L.R.2d 1302. Defendants also say that under Lozano v. Guerra, Tex.Civ.App., 140 S.W.2d 587, no writ, the ten-year restriction only fixes a limit on the administration period. In that case the court did not pass on the ......
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Zahn v. National Bank of Commerce of Dallas, 15504
...periods under circumstances similar in some respects to the case at bar are: Vogt v. Meyer, Tex.Civ.App., 169 S.W.2d 745; Lozano v. Guerra, Tex.Civ.App., 140 S.W.2d 587; Caples v. Buell, Tex.Civ.App., 234 S.W 429; Brown v. Canal Bank & Trust Co., 5 Cir., 141 F.2d The heirs at law also conte......
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