Lumpkin v. Smith

• Decision Date: 21 October 1884
• Docket Number: Case No. 1716.
• Citation: 62 Tex. 249
• Parties: WILSON LUMPKIN v. E. B. SMITH, GUARDIAN, ET AL.
• Court: Texas Supreme Court

62 Tex. 249

WILSON LUMPKIN

v.E. B. SMITH, GUARDIAN, ET AL.

Case No. 1716.

Supreme Court of Texas.

Oct. 21, 1884.

ERROR from Anderson. Tried below before the Hon. James I. Perkins.

T. J. Williams, for plaintiff in error.

R. A. Reeves and Greenwood & Gooch, for defendants in error.

STAYTON, ASSOCIATE JUSTICE.

Wilson Lumpkin was by the will of John Murchison, deceased, appointed the executor of his will, which provided that his estate should be administered without the control of the probate courts.

Lumpkin qualified, and so administered the estate in accordance with the will.

After having had charge of the estate for about thirteen years, on June 20, 1883, the executor filed in the county court for Anderson county what purports to be his final account, in which he stated that the four children of John Murchison made legatees by his will had died, and that the two minor children of one of them was entitled by inheritance to the estate not disposed of. The name and residence of the two minor children were given, and there was a prayer for citation to their guardian, who was named. The report contains the following statement: “This executor is also advised and believes the powers and duties conferred on him as executor by said will are determined and ended except as to filing a report of his management of said estate and a settlement with the legal heirs thereof, and his discharge. He therefore comes into court and prays that this, his said report and final settlement, by the court be heard, that said Smith, guardian, be cited according to law, and this executor be discharged from his trust.”

There was a full statement of the administration of the estate, which showed that there was no personal property on hand of any value.

Under the provisions of the will of Murchison and the facts stated by the executor, all of the estate in his hands would belong to the two minor children before referred to, except such part thereof as one of the legatees may have conveyed in his life-time to Geo. A. Wright, who became a party to this proceeding.

There was a prayer by the executor for compensation for his services other and above such fees as are allowed to executors by the statute.

There was no prayer for partition of the estate.

A plea to the jurisdiction of the county court was filed, but does not appear to have been acted on by the court.

The county court examined the final report of the executor, as restated under the order of the court, and adjudged that the estate was indebted to the executor in the sum of $4,795.82, one-half of which was declared to be a claim against the estate of W. D. E. Murchison, deceased, who was one of the legatees under the will of John Murchison, his father, and that the other half of that sum was a claim against the estate of W. H. Murchison, deceased, who was also a son of John Murchison and a legatee under his will.

From this judgment there was an appeal to the district court, in which the plea to the jurisdiction of the county court, and to the jurisdiction of the district court, was urged and sustained, and an order was entered setting...