Morrell v. Hamlett

• Citation: 24 S.W.2d 531
• Decision Date: 19 December 1929
• Docket Number: (No. 863.)
• Parties: MORRELL et al. v. HAMLETT.
• Court: Texas Court of Appeals

24 S.W.2d 531

MORRELL et al. v. HAMLETT.

(No. 863.)

Court of Civil Appeals of Texas. Waco.

December 19, 1929.

Rehearing Denied February 6, 1930.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Action by R. B. Hamlett against Ralph E. Morrell and another, individually and as independent executors and trustees of the estate of W. R. McDaniel, deceased. Judgment for plaintiff, and defendants appeal. Affirmed.

Wear, Stollenwerck & Wear, of Hillsboro. for appellants.

Baker, Botts, Parker & Garwood, of Houston, and J. L. Gammon, of Waxahachie (Rodman S. Cosby, of Houston, of counsel), for appellee.

GALLAGHER, C. J.

This is an appeal by Ralph E. Morrell and J. K. McDaniel, hereinafter called appellants, from a moneyed judgment rendered against them as individuals and also as executors of the estate of W. R. McDaniel, deceased, in favor of R. B. Hamlett, appellee herein. W. R. McDaniel died January 12, 1922. His will was duly probated, and appellants, who were named as independent executors therein, duly qualified as such on October 10, 1922. An inventory and appraisement of the testator's estate was returned by appellants, but such inventory is not found in the statement of facts. The estate consisted of both real and personal property. One item thereof was an interest in the assets of the Bank of Milford. Said bank seems to have been owned by the testator and appellant J. K. McDaniel as copartners. The assets and liabilities of said bank were not shown, but there was testimony tending to show that much of the indebtedness due to it had, by reason of deflation and depreciation in values, become uncollectible. The statement of facts does show affirmatively that the debts owed by said estate, and especially by said bank, for which the testator's estate was liable, were very large. Under the provisions of said will, certain legacies were bequeathed and specific tracts of land devised to various parties. Appellant J. K. McDaniel was made residuary legatee and devisee of all the remainder of said estate after specific legacies and devises were satisfied. Appellants were directed by the terms of said will to pay all the debts of the testator, and authorized thereby to appropriate all moneys on hand to such purpose, and if such moneys proved insufficient, to sell such property belonging to the estate as they considered advisable and to apply the proceeds of such sales to the extinguishment of such indebtedness. By the terms of said will a specific tract of land consisting of 500 acres was devised to appellee, his four brothers, and a sister. Appellants, immediately after their qualification as executors, took possession of said estate, including the land so devised to appellee and his sister and brothers, rented the same, and collected the rents therefrom annually. They also paid the taxes assessed against the same. They held possession of said land until September 21, 1926, at which time they surrendered possession thereof to said devisees. Appellants, at the time they delivered possession of said land to the devisees thereof, apportioned and paid to each of them a sum of money as their proportionate part, respectively, of the money on hand at that time. In that connection, they submitted a statement of the cash received and expended by them, in which statement the rents sued for herein were included and shown to have been applied, except as to the amounts so paid said devisees, to the discharge of the debts and expenses of administration. Shortly thereafter appellant Morrell, in a letter to appellee dated December 4, 1926, stated that they had administered the estate under the most trying conditions that ever existed in this country within his knowledge; that the debts of the estate were very large and money was hard to get; that deflation had spread over the country and depreciated the value of real estate and wiped out a great deal of the indebtedness due the estate, particularly indebtedness due to the bank of Milford; that after four years of hard work and uncounted worry, the executors had completed their administration, and turned over said land to him and his codevisees clear of debt and with the right on their part to collect the income therefrom for the year 1926. He further stated therein that the executors had acted all the way and were then acting under legal advice, and that they did not owe to appellee and his codevisees any further statement and that he need not call upon them for such.

Four of appellee's codevisees assigned to him their respective claims and demands against appellants for and on account of the rents collected by them on said lands during the time they held possession thereof. Appellee thereafter, on April 5, 1927, instituted this suit against appellants, individually and as independent executors and trustees of said estate, to recover said rents. One of said devisees did not assign his claim to appellee and is not a party to this suit. No complaint is made of the failure of appellee to make him a party hereto.

Appellants in their answer alleged that after qualifying as executors, they took possession of the lands constituting said devise; that they collected rents thereon annually during each of the years from 1922 to 1925, inclusive, amounting in the aggregate to $14,869.59; that the rents so collected were appropriated by them annually as collected; and that a recovery thereof was barred by the two years' statute of limitation. They further alleged that such rents were appropriated by them for the purpose of paying expenses incident to the administration of said estate.

The agreed statement of facts shows that shortly after the probate of the will, appellee, for himself and in behalf of his codevisees, made demand upon appellants for the possession of said tract of land; that such demand was repeated from time to time until possession was in fact surrendered by appellants as hereinbefore stated; that such demands were continuously refused on the ground that appellants could not safely comply therewith because certain parties had threatened to contest the probate of said will; that they had been told by their legal adviser that on account of such threat they could not properly deliver possession of said lands to said devisees until after the lapse of four years from the probate of said will. The testimony further shows that appellants claimed they could not properly surrender possession of said land to the devisees thereof until all the debts of the estate were fully paid. During all the time appellants held possession of said land, they purported to be holding the same in their capacity as independent executors of said estate. The parties, in order to avoid the necessity of appointing an auditor and for the purpose of facilitating the trial of the case, agreed "that at all times since the executors took possession and control of the real estate involved in this litigation, the estate of W. R. McDaniel, deceased, other than the special legacies named in his last will and testament, was sufficient to satisfy the debts of the estate * * * without resorting to either the special legacies or the revenue derived from them collected while in the hands of the executors."

There was a trial before the court and judgment in favor of appellee against appellants for the sum of $11,791.33, with interest thereon from the date of the judgment at the rate of six per cent. per annum. Appellants do not question the amount of such judgment, except so far as the same may be affected by the issue of limitation. Appellants requested the court to prepare and file findings of fact and conclusions of law, which request was complied with. Appellants thereupon filed assignments of error and supersedeas bond for appeal.

Opinion.

Appellants submit as ground for reversal 32 separate propositions. Only one major contention is presented thereby. Such contention is that appellee's cause of action, or at least so much thereof as is based on rents collected by appellants during the years 1922 to 1924, inclusive, is barred by the statute of limitation of two years. Such contention is based on further contentions subsidiary thereto that appellants as executors of said estate had no authority, either by the terms...