Norwood v. Farmers & Merchants Nat. Bank

• Decision Date: 08 November 1940
• Docket Number: No. 2058.,No. 2057.,2057.,2058.
• Citation: 145 S.W.2d 1100
• Court: Texas Court of Appeals
• Parties: NORWOOD v. FARMERS & MERCHANTS NAT. BANK OF ABILENE et al.

145 S.W.2d 1100

NORWOOD v. FARMERS & MERCHANTS NAT. BANK OF ABILENE et al.

No. 2057.

No. 2058.

Court of Civil Appeals of Texas. Eastland.

November 8, 1940.

Rehearing Denied December 6, 1940.

Appeal from District Court, Taylor County, Forty-Second District; M. S. Long, Judge.

Proceeding in the matter of the estate of Willis Norwood, deceased, wherein the Farmers & Merchants National Bank of Abilene, as independent executor, offered the will for probate. Wiley Norwood filed a protest. The Farmers & Merchants National Bank of Abilene was appointed temporary administrator. Maggie M. Norwood, surviving wife of Willis Norwood, deceased, objected to the payment of funeral expenses and expenses of temporary administration out of the community estate. From the judgment, Maggie M. Norwood appeals.

Affirmed.

Scarborough, Yates & Scarborough, of Abilene, for appellant.

T. J. McMahon and Hudson Smart, both of Abilene, for appellees.

LESLIE, Chief Justice.

As stated in the briefs "identical judgments were entered in the district court" in the above cases. They have been briefed together. The parties agreed to the entry of the same judgment in each case below. That was without prejudice to the rights of appeal. As the appeals are presented together, they will be so considered.

Willis Norwood and wife, Maggie M. Norwood, during 50 years of married life, accumulated an estate valued at approximately $200,000. May 3, 1939, Willis Norwood died, leaving a will disposing of his property. At the time of his death he owed no debts. The appellee bank and T. J. McMahon were named trustees for the handling of the estate. Later McMahon resigned. The bank was also named as independent executor of the estate and as such offered the will for probate. Wiley Norwood, a son of deceased, filed a protest, resisting the probate of the will. Thereupon the bank made application to be appointed temporary administrator of said estate. It was appointed, qualified as such, and took possession of the entire community estate of the deceased and his wife. This was without the consent of the latter as to her share of the property.

The questions presented by this appeal are in substance covered by the twelfth paragraph of the stipulations entered into by the litigants:

"That the following expenses were incurred in the temporary administration, which all parties agree are reasonable, proper and necessary expenses; that it is the contention of the temporary administrator that the entire expenses should be charged to the entire estate and paid one half by the community share of Willis Norwood, deceased, and one half by the community share of Mrs. Maggie Norwood. It is the contention of Mrs. Norwood, that the entire expense should be paid by the temporary administrator out of the community share of Willis Norwood, deceased, said expenses being as follows: to-wit:

                Laughter Funeral Home
                  (Funeral expenses of Willis
                    Norwood) .................   $  998.50
                T. J. McMahon
                  (Attorney's fees as temporary
                    adm'r.) ...................   1,000.00
                Farmers & Merchants National
                   Bank of Abilene, Texas
                  (Fees for temporary adm'r.)       500.00
                                                 _________
                                                 $2,498.50"
                

The thirteenth paragraph of the stipulations is as follows: "It is further stipulated that Item II of the joint will of Willis Norwood and Maggie M. Norwood is as follows, to-wit: `We, and each of us, desire and direct that all of the just debts of each of us be paid by the executors hereinafter named as soon after our respective deaths as may be practicable.'"

The County Court authorized the administrator to subject the community estate (both shares thereof) to the payment of the above claims. Mrs. Norwood excepted and appealed to the District Court, and the trials there resulted in a judgment, in substance, the same. That is, the effect of the judgment was to require one half of the costs of the matters or items in controversy to be borne by the interest in the estate belonging to Mrs. Norwood. To this she excepted and appeals.

Upon request the trial court filed findings of fact and conclusions of law. They are in substance the same as the agreed statement of facts.

The appeal is predicated upon two propositions of law. The first is that since the funeral expenses were not incurred during marriage and the estate was solvent, the share of Willis Norwood in the estate was primarily liable for such expenses and the share of Mrs. Norwood was only secondarily liable, if liable at all.

The second proposition is in substance that since the temporary administration was merely a pendente lite administration, the administrator had no right to the possession of Mrs. Norwood's property, "if any at all, beyond the right to insure that true community debts would not be paid wholly from the share of Willis Norwood and therefore the administrator had no right to charge Mrs. Norwood's interest in the estate with any part of the administrative costs of the temporary administration."

The appellee (administrator) replies to these contentions with the following counter propositions:

(1) The Farmers & Merchants National Bank of Abilene, as temporary administrator of the estate of Willis Norwood, deceased, was required as such to take charge of the entire community estate of the deceased Willis Norwood, and the surviving spouse, Mrs. Maggie M. Norwood, hence such temporary administration being for the benefit of the entire community estate, the reasonable and necessary expenses incident thereto are properly and necessarily deductible from the whole of the community estate, the balance of said community estate, after the deduction of such reasonable and necessary expenses, being the proper subject of partition between the deceased spouse's administrator and the survivor.

(2) "Since there was no separate estate of either spouse, the community estate was primarily liable for the funeral expenses of Willis Norwood, deceased, hence the trial court did not err in charging one half thereof to the community share of Mrs. Norwood."

We are of the opinion that the contest of the probate of the will by Wiley Norwood rendered the appointment of a temporary administrator proper and necessary. Huth v. Huth, Tex.Civ.App., 187 S.W. 523, 525, 528, writ refused. That administration was in all respects lawful. This authority also holds that it is the right and duty of the temporary administrator under such circumstances to take charge and custody of the entire community estate of the deceased and his wife. In that opinion the court, after discussing the propriety and necessity for the appointment of a temporary administrator in the case of a will contest, also discussed and passed upon the right and duty of such temporary administrator to take possession and preserve, etc., the entire community estate of the deceased and the surviving spouse. The contention was there made that if it be conceded that the County Court had the authority to appoint a temporary administrator of the estate of the deceased wife, with power to take possession of the property belonging to said estate, "still said court had no lawful authority to empower said temporary administrator to take possession of appellant's one-half undivided interest of the community property belonging to himself and the estate of his deceased wife * * *." That such order would be...