Moore v. Wooten

• Decision Date: 10 February 1926
• Docket Number: (No. 542-4282.)
• Citation: 280 S.W. 742
• Parties: MOORE et al. v. WOOTEN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

280 S.W. 742

MOORE et al. v. WOOTEN et al.^*

(No. 542-4282.)

Commission of Appeals of Texas, Section B.

February 10, 1926.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Mrs. F. E. Wooten and others against E. F. Moore and others. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (265 S. W. 210), and defendants bring error. Reversed and rendered.

Baker, Botts, Parker & Garwood, of Houston, and E. B. Pickett, Jr., of Liberty, for plaintiffs in error.

A. L. Kayser, of Conroe, and J. Llewellyn, of Liberty, for defendants in error.

SHORT, J.

W. J. Wooten was the only child and heir at law of his father, W. R. Wooten, and his mother, Sarah J. Wooten, who were divorced by the district court of Walker county in the year 1855. Afterwards W. R. Wooten married Rosa McGee, who had been previously married and who had one son by the name of Daniel C. McGee. This marriage took place in the year 1856, and in 1860 F. D. Thornton conveyed to W. R. Wooten 1,500 acres of land out of the Melina Whittington survey in Liberty county, Tex. W. R. Wooten died in Walker county, Tex., intestate, May 18, 1870, leaving surviving him his widow, Mrs. Rosa McGee Wooten, and his son by his first marriage, W. J. Wooten, as his heirs at law.

On March 29, 1871, E. R. Wooten, the widow of W. R. Wooten, deceased, was duly appointed by the probate court of Walker county as administratrix of the estate of her deceased husband, and duly qualified by giving the bond and taking the oath required of her by the law. Appraisers were appointed by the probate court of Walker county, and an inventory was presented and filed in said court on May 11, 1871. In this inventory appears the following recitation:

"Inventory of real property belonging to the estate of W. R. Wooten: A half interest in a tract of land lying in Liberty county, containing 1,500 acres of land."

This inventory also included a list of personal property belonging to the Wooten estate, the nature of which as described in the inventory is such as to compel the conclusion that the personal property was belonging to the community estate of W. R. Wooten and his surviving wife, the administratrix, but the inventory does not indicate otherwise that either the personal property or the real estate belonged either to the community estate or to the separate estate of W. R. Wooten, deceased. It was shown that all the records of Liberty county were destroyed by fire in the year 1874.

On July 21, 1875, an order was made by the probate court of Walker county in the estate of W. R. Wooten, deceased, directing the sale of "an undivided half interest in and to a tract of land situated in Liberty county, Texas, a part of the Melina Whittington H-RE, the same conveyed by F. D. Thornton to decedent by deed dated November 17, 18 ___." On December 2, 1875, the probate court of Walker county, in the estate of W. R. Wooten, deceased, approved the sale made by the administratrix by virtue of the report of sale to one L. A. Abercrombie of this one-half undivided interest in the 1,500 acres in Liberty county, a part of the Whittington survey. This order was based on the report made to the probate court of the sale aforesaid of the land aforesaid by E. R. Wooten, administratrix of the estate of W. R. Wooten, deceased, on December 2, 1875. On April 6, 1876, the administratrix of the estate of W. R. Wooten executed a deed conveying to the purchaser an undivided interest in the tract of 1,500 acres situated in Liberty county, Tex., in which conveyance the orders above mentioned were recited. On January 26, 1881, E. R. Wooten and her son, Daniel C. McGee, executed a conveyance to L. A. Abercrombie of "a one-half undivided interest in and to our one-half undivided interest in a certain tract containing fifteen hundred acres more or less, situated in Liberty county, Texas, and a part of the Melina Whittington survey, the said Abercrombie being already the owner of one-half of said 1,500-acre tract, and this deed is intended to convey to him one-half of the remaining half of said 1,500 acre tract, thereby investing him with the title to three-fourths of said 1,500 acre tract." On April 21, 1883, E. R. Wooten and her son, Daniel C. McGee, conveyed to D. D. Alston "all our right, title and interest in the same, being a 1/4 undivided interest in a certain tract containing fifteen hundred acres more or less, situated in Liberty county, Texas, and a part of the Melina Whittington survey, L. A. Abercrombie being the owner of the three-fourths interest therein." On July 20, 1883, D. D. Alston executed to L. A. Abercrombie a conveyance of the same property, described in substantially the same language, which he acquired from E. R. Wooten and Daniel C. McGee.

The plaintiffs in error assert ownership of the 1,500 acres of land by virtue of the instruments above mentioned and the facts stated, which are undisputed, since their claim of ownership connects itself with the title evidenced by the instruments mentioned. On the 7th of June, 1920, this suit was filed by the wife and children of W. J. Wooten, who had died intestate August 31, 1880, in the form of trespass to try title and for damages, asserting an ownership in the 1,500 acres of land to the extent of an undivided one-fourth interest, claiming that the said W. J. Wooten had inherited from his father W. R. Wooten, this undivided one-fourth interest in this 1,500 acres, which had not been sold by his administrator or otherwise disposed of by any one having the lawful authority to convey it, and asserting that the 1,500 acres of land was community property of W. R. Wooten and his wife, Rosa McGee Wooten, one-half of which upon the death of W. R. Wooten descended and vested in W. J. Wooten and the other one-half in Rosa McGee Wooten, charged with the community debts of W. R. and Rosa McGee Wooten, and in effect basing their claim to the one-fourth interest upon the proposition that the deed of the administratrix to Abercrombie conveying an undivided one-half interest in the 1,500 acres, when properly construed, meant that one-half of the W. R. Wooten's interest in the land only was conveyed and the other one-half which was conveyed belonged to his wife, leaving unsold in said 1,500 acres of land belonging to the estate of W. J. Wooten, deceased, an undivided one-fourth interest, and leaving to Rosa McGee Wooten a like interest. The plaintiffs in error pleaded a general denial, not guilty, and the statutes of 3, 5, and 10 years' limitation, and also filed a cross-action seeking to recover all of the land except 207 acres in the southeast corner. The case was tried before the court without the intervention of a jury, and judgment rendered in favor of the defendants in error for an undivided one-fourth interest in the land sued for, and $2,000 as damages on account of timber cut, and also rendered judgment against the plaintiffs in error upon their cross-action. A motion for new trial having been filed and overruled, and an appeal having been perfected to the Court of Civil Appeals, the judgment of the trial court was affirmed, and, upon application by the plaintiffs in error, the Supreme Court granted a writ of error, and the case has been referred to this section of the Commission of Appeals for disposition.

The first assignment of error calls in question the correctness of the opinion of the Court of Civil Appeals in holding that the administratrix's deed to L. A. Abercrombie only conveyed an undivided one-fourth interest in the land belonging to the estate of W. R. Wooten, deceased, and that the defendants in error were entitled to recover the remaining one-fourth apparently belonging to said estate.

The proceedings that settle and distribute the estate of a deceased person is called an administration. Act of August 15, 1870 (Laws 1870, c. 81) § 24. "The term estate of a deceased person, includes all the rights and obligations of the deceased, as they existed at the time of his decease, together with all that has accrued thereto since, and the new charges to which it becomes subject." Section 25 of the same act. When a person dies, the estate vests in the persons entitled under the law regulating wills and the descent and distribution of estates; but, upon the grant of letters testamentary or of administration, the executor or administrator becames entitled to the possession of it, for the purpose of administration and for that purpose only. Section 27 of the same act. All persons who are interested in the administration are necessary parties thereto, and include distributees, creditors and the administrator. Sections 38 and 60 of said act.

Section 121 of the Act of August 15, 1870, made it the duty of an administrator, within 30 days after taking the oath and giving the bond, to return a true and perfect inventory of all the real and personal property, books, title papers, other papers, and evidences of debt due, or to become due, belonging to the estate.

Section 132 of the same act required the inventory to be filed, and thereafter five days, without objection having been made, to be entered of record; while section 133 made it the duty of the court, at each term thereof, to inquire whether all inventories had been duly returned and to cite and compel all delinquents to comply with the law with relation thereto, and the following section authorized the judge, of his own motion or on motion of any person interested in the administration, to cite the administrator to show cause why a more perfect inventory should not be returned by him.

Section 136 declared that inventories and appraisements should be evidence in any suit against the executor by any person interested in the administration, but should not be conclusive, if it be shown that the property, or any part thereof, was sold in good faith for less than the appraisement, or did not belong to the estate.

Section 233 of the same act...