McCarthy v. Texas Co.

• Decision Date: 25 June 1921
• Docket Number: (No. 9660.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 235 S.W. 679
• Parties: McCARTHY v. TEXAS CO. et al.
• Court: Texas Court of Appeals

Page 679

235 S.W. 679

McCARTHY v. TEXAS CO. et al.

(No. 9660.)^*

Court of Civil Appeals of Texas. Fort Worth.

June 25, 1921.

Rehearing Denied October 15, 1921.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

In the matter of the estate of A. Hise, deceased. Application by Henry M. McCarthy against the Texas Company and others for certiorari to review the appointment of M. A. Hise as community administratrix. From an order sustaining a demurrer to the petition, applicant appeals. Reversed and remanded.

Etheridge, McCormick & Bromberg, of Dallas, and Conner & McRae, of Eastland, for appellant.

Scott, Brelsford, Funderburk & Ferrell, of Eastland, for appellees.

CONNER, C. J.

In this case the court sustained the appellees' general demurrer to the petition of appellant for certiorari to the county court, and, appellant having declined to amend, the suit was dismissed, and this appeal is from the judgment of dismissal. The application for the writ of certiorari was filed in the district court by appellant on November 3, 1919. The court, by order indorsed on the petition, directed the clerk upon the filing and approval of a bond in the sum of $500, to issue the writ as prayed for. Appellees, having been cited, appeared, and, among other things, urged the general demurrer to the petition which, as stated, was sustained, and we are now called upon by appellant's assignment of error to determine the sufficiency of the petition.

Appellant alleged, in substance, that one A. Hise and his wife, M. A. Hise, were the community owners of a certain tract of land described in the petition; that on January 8, 1914, A. Hise died intestate, leaving his surviving widow, M. A. Hise, and seven named children; that at the time of the death of A. Hise there existed no community debts, and that each of the seven children named had attained their majority; that nevertheless one of said children, R. L. Hise, at the instance of his mother, M. A. Hise, and all of the heirs of A. Hise, on January 16, 1914, applied to the county court for letters of temporary administration, which were granted on the same day; that on March 23, 1914, R. L. Hise was by order of the county court continued as temporary administrator until the next term, which was the January term, 1915, when he applied for and on January 15, 1915, was granted letters of permanent administration on said estate, and thereafter duly qualified; that on January 26th following, together with appraisers, he appraised the land in controversy at $3,500, and personal property of the value of $290, which inventory and appraisement was approved, and the administrator's bond fixed at $11,580; that oath and bond of R. L. Hise as permanent administrator was made and approved by the court. It was alleged, in substance, that the application for administration by R. L. Hise recited that it was made because his mother, M. A. Hise, was old and infirm and unable to qualify as administratrix, and that the applicant had been selected as the proper person to make the application.

The petition further alleged that, notwithstanding the proceeding stated, and while the administration was yet pending, said M. A. Hise, on November 28, 1917, filed in said county court her petition to qualify as community survivor of the estate of herself and her deceased husband, A. Hise, which petition disclosed affirmatively that each of the seven surviving children of A. Hise, deceased, had attained his or her majority, and contained no averment of any indebtedness whatever of said A. Hise, deceased, or of any charges or claims against said estate, nor the averment of any fact showing any necessity for community administration.

It was further alleged as a matter of fact that there did not then exist any indebtedness against or necessity whatever for administration, community or otherwise, upon said estate; that the court was without jurisdiction to entertain the petition of said M. A. Hise for the following reasons:

"(1) No indebtedness existed; (2) The petition affirmatively disclosed that the children were of age and under no disability; (3) no necessity was alleged or existed for any administration on said estate; (4) said M. A. Hise had previously relinquished her right to administer said appointment as administrator, which relinquishment was and is irrevocable; (5) permanent administraton was then pending in said court under its former orders appointing and qualifying said R. L. Hise, and said court had therefore exhausted its jurisdiction and neither then nor thereafter had any jurisdiction to appoint the said M. A. Hise as community or other administratrix of the estate of A. Hise, deceased, or of the community estate of said A. Hise, deceased, and M. A. Hise; and (6) that the record of the court affirmatively showed that no debts existed against said estate, that the children of A. Hise were all living and over 21 years of age, and that no necessity whatever for administration existed."

It was further alleged that thereafter, on November 28, 1917, said court, although wholly without jurisdiction, did, by order of said date grant said application; that said order was improvidently made and is totally and wholly void, for the reasons above alleged, and because on and prior to November 28, 1917, the community estate had descended and vested in the said M. A. Hise and said children.

The petition further alleged that on the same day, to wit, November 28, 1917, M. A. Hise filed an inventory, showing the appraisement of the lands in controversy at $3,000, which appraisement and inventory was approved by the county court on the next day, whereupon M. A. Hise made oath and gave bond as required by order of the court, which was duly approved; that thereafter, on November 30, 1917, and on November 25, 1918, M. A. Hise executed certain mineral leases upon the lands in controversy, by virtue of which the defendants in the case were claiming. The plaintiff alleged title in himself to an undivided one-half interest in all and singular the mineral rights in the lands in controversy under a legal chain of mesne conveyances by, from, through and under said children and heirs at law of said A. Hise.

The petition is quite lengthy, and we have only set out the substance of such parts of it as we deem necessary to an understanding of our conclusions.

Appellees object, for various reasons, to appellant's assignments and propositions. One of the assignments, however, is as follows:

"The court erred in sustaining and not overruling the general demurrer of the defendants States Oil Corporation and Prairie Oil & Gas Company to the plaintiff's third amended original petition, filed in said cause on the 28th day of September, 1920."

We think this assignment sufficient to raise the questions discussed, particularly in view of the ruling in the case of First State Bank v. McGaughey, 38 Tex. Civ. App. 495, 86 S. W. 55, to the effect that it is fundamental error apparent on the face of the record to dismiss a suit on a general demurrer where the petition states a good cause of action, and that such error will be reviewed even in the absence of an assignment of error. We therefore will address ourselves to the questions involved, without discussion of the sufficiency of appellant's assignments and propositions to comply with the rules.

Appellees, among other things, seek to sustain the ruling of the court on the ground that appellant as a purchaser of an interest in the lands of A. Hise, deceased, from his heirs is not a person interested in the estate of A. Hise within the purview of article 733, V. S. Tex. Civ. Statutes, relating to the subject of certiorari. This article reads:

"Any person interested in the estate of a decedent or ward may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward; provided, that persons non compos mentis, infants and femes covert shall have two years after the removal of their respective disabilities within which to apply for such revision and correction."

Appellees' contention is to the effect that a review of the probate proceedings in the county court by certiorari is but another method of appeal, and that only parties to the proceeding in the county court may appeal from one of its orders, citing Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367; Ferris v. Streeper, 59 Tex. 312; Clarke v. Koehler, 32 Tex. 680; Ennis v. Bestwick, 37 Tex. 662; Tex. Land & Invest. Co. v. Kennedy, 123 S. W. 150; Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185, 72 Am. St. Rep. 211. All of the cases cited, however, except the last, were cases of ordinary appeal, wherein, for reasons stated in those authorities it was held that parties to the record only were entitled to prosecute an appeal. The case of Storrs v. St. Luke's Hospital, supra, however, would seem to sustain appellees' contention, but we think this case is not in harmony with opinions from other jurisdictions, nor in harmony with the spirit of the article of the statutes quoted. Under our statutes of descent and distribution (article 3235, V. S. Tex. Civ. Statutes), upon the death of A. Hise his estate at once vested in his heirs, subject only to the payment of community debts and a lawful administration. Belt v. Cetti, 100 Tex. 92, 93 S. W. 1000. The terms of article 733 are very broad. It declares that "any person interested in the estate of a decedent" may have the proceedings of the county court revised or corrected at any time within two years after such proceedings were had. As appellant acquired the right of the heirs of A. Hise by due conveyance, as he alleged, it would certainly seem to be that he is interested in that estate, and there is nothing in the petition which shows that he is a mere intermeddler, or that the transaction in which he secured the rights assigned to him was champertous, which...