Orr v. Wright

• Decision Date: 19 February 1898
• Citation: 45 S.W. 629
• Court: Texas Court of Appeals
• Parties: ORR et al. v. WRIGHT.<SMALL><SUP>1</SUP></SMALL>

45 S.W. 629

ORR et al. v. WRIGHT.¹

Court of Civil Appeals of Texas.

February 19, 1898.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Application by J. H. Wright for letters of guardianship of the estate of Willie Orr, a minor. The application was denied by the county court. An appeal was taken to the district court, where the application was granted, and an appeal taken by Charles M. Orr and another. Affirmed.

McCormick & Spence and W. C. Kimbrough, for appellants. McLaurin & Wozencraft, for appellee.

BOOKHOUT, J.

This is an application of J. H. Wright, a resident of the state of Mississippi, and there appointed guardian of the estate of Willie Orr, a minor, for letters of guardianship in the state of Texas, on her estate. The application was allowed by the district court on appeal thereto, from which order of the district court this appeal is prosecuted. In July, 1895, the appellee filed his petition in the county court of Dallas county, Tex., alleging that appellee is a resident citizen of Mississippi; that W. W. Orr, as a resident citizen of Jasper county, Miss., died there, at his house, in August, 1894, intestate, leaving surviving him, as his only relatives in Mississippi, A. C. Orr, his wife, and Willie Orr, their two year old daughter, who still reside at the said house; that appellee was duly appointed guardian of Willie Orr, in said Jasper county, Mrs. A. C. Orr, her only relative in Mississippi, having waived her right to guardianship in his favor; that a complete transcript from the probate (chancery) court of Lauderdale county is made a part of appellee's petition, showing the jurisdiction and action of the court in appointing appellee guardian, his bond, etc.; that W. W. Orr was occupying his said homestead in Lauderdale county, with his wife and Willie Orr, at the time of his death; that included in his property in Mississippi was the said homestead and about $2,930 in bank at Meridian, Lauderdale county, Miss.; that W. W. Orr left, surviving him, of a former marriage, his sons, J. K. Orr and C. M. Orr, and his daughter Mrs. J. T. Austin, all three residing in Dallas county, Tex.; that the three last named and Willie Orr and Mrs. A. C. Orr are the sole heirs of W. W. Orr; that Willie Orr has in Dallas county, Tex., in the custody of E. O. Tenison, her guardian of estate there, about $8,725.82 in money, and a lot 25×100 feet on the north side of Commerce street, about 25 feet east of Martin street, worth about $3,250; that the county court of Dallas county has granted letters of guardianship on the estate of Willie Orr to E. O. Tenison, of Dallas county; that appellee is not disqualified to act as guardian of Willie Orr; that appellee makes application for guardianship in order that he may remove "the funds" of Willie Orr's estate to Mississippi, and there account for same as her guardian; that no administration has been granted in Texas on W. W. Orr's estate, and there is no necessity for any; that the estate of W. W. Orr and Willie Orr owe no debts in Texas, and no reason exists why said Tenison, guardian, should not surrender Willie Orr's estate to appellee upon his qualifying as her guardian in the county court of Dallas county; and the prayer is for letters of guardianship on Willie Orr's estate, and for surrender to him of all her property, etc. Attached to the above petition, as parts of it, are the following papers: The petition of J. H. Wright, filed October 19, 1894, to the chancery court of Jasper county, Miss., for letters of guardianship on the estate of Willie Orr; the waiver and petition of Mrs. A. C. Orr, filed October 19, 1894, to same court, praying J. H. Wright's appointment as guardian; J. H. Wright's bond and oath as guardian, of date October 19, 1894, and the approval of same and grant of guardianship letters at rules on same day; confirmation of the rule made March, 1895. The above are duly certified to be a copy of the record in the guardianship of Willie Orr's estate. As part of appellee's petition to the county court of Dallas county the following papers appear: A petition by appellee to the chancery court of Jasper county, Miss., reciting the ownership by Willie Orr of the $8,725.82 and the lot in Dallas, worth $3,250, and accompanying same by an inventory of her estate in Texas, and a bond, with two sureties, for more than double the value of all this property, conditioned to account for and safely manage said estate when transferred to his keeping in Mississippi; and an order of the court approving the bond on August 9, 1895. The papers are all duly certified. To said application Charles M. Orr filed his exception, objections, and answer, and represented to the court that said minor, Willie Orr, was a minor of tender age, was a citizen of Texas, and only temporarily absent in the state of Mississippi, by the wish and control exercised over her by virtue of the guardian of her person, to wit, her mother, Mrs. A. C. Orr; that said minor had an estate left her by her deceased father, W. W. Orr, in Dallas county, Tex., of great value, to wit, about $9,000, and real estate of the value of $2,500; that her father had been dead near two years; and that soon after the death of her father and his burial, in Dallas, Tex., the mother, Mrs. A. C. Orr, being at said time in Texas and at Dallas, Tex., expressly waived her right to be appointed guardian of the minor child, who was also at Dallas, and did ask and request the said E. O. Tenison to permanently qualify as the guardian of said minor; and that at said time the half-brothers of the said minor, to wit, J. K. Orr and Charles M. Orr, and Mrs. H. C. Austin, and the said Mrs. A. C. Orr, all agreed to waive their respective rights to apply for appointment of guardian of said estate of said minor in favor of the said E. O. Tenison, provided said Tenison would accept the same, and the same was to be final and a permanent guardianship; that thereupon said Tenison was appointed, and has so acted since; that said Tenison is about to give up said guardianship, and permit the fund to be taken beyond the jurisdiction of the court; and that he (Chas. M. Orr) is not disqualified from being appointed guardian; and he asks that he be appointed, to the exclusion of both said applicant and the said E. O. Tenison. Said Charles M. Orr further objected by way of protest to the said J. H. Wright's right to qualify as guardian of the minor, and remove the funds beyond the jurisdiction of the court, as contemplated and prayed for by his said petition: Because (1) The court in Dallas county, Tex., appointing E. O. Tenison, first acquired jurisdiction over the person and the property of the minor, and should not be ousted by a foreign jurisdiction. (2) That there was no good reason why the property should be removed to a foreign jurisdiction, and many reasons why the jurisdiction of the home court should be maintained, because part of said estate was in real estate situated in Dallas county, Tex., and could not be sold, in order to be removed, except at great sacrifice; that it would be necessary, therefore, to maintain two administrations on the minor's estate, and would incur useless expense. (3) Because the foreign guardian had not given bond with sureties in this state, as required by law. (4) Because the pretended foreign guardian is not the next of kin to the minor, and not entitled to be appointed guardian, to the exclusion of Charles M. Orr, the next of kin, being the half-brother. (5) Because the mother, Mrs. A. C. Orr, was engaged in litigation, the result of which might be adverse to the rights and interest of the minor, and, being disqualified, could not dictate another guardian, to the exclusion of the next of kin, who had a preference under the statute. E. O. Tenison, guardian, filed an exception and demurrer to said application of Charles M. Orr to be appointed guardian, and set up that he had waived his right to be appointed as the next of kin to the minor in favor of the guardian, Tenison, at the time Tenison was appointed, and was estopped as far as his right to take the guardianship from Tenison is concerned. The guardian, Tenison, failed to file any answer whatever to the application of the said J. H. Wright, applicant, and made no protest against his designs. Upon hearing of all the facts, the county court of Dallas county, on October 4, 1895, entered its judgment and decree refusing the application of the said J. H. Wright, and taxing the cost against him, and also refusing the application of Charles M. Orr to be appointed guardian, but sustaining Orr's protest and objection to the application of J. H. Wright. This judgment was entered nunc pro tunc as of October 4, 1895, on November 30, 1895; the October term (the term at which the case was tried) having ended on November 2, 1895. From this judgment and decree there was an appeal of the case to the district court of Dallas county, under the statute governing such cases; and the county clerk, at the instance of the applicant, J. H. Wright, made a transcript of all the proceedings in the county court relative to the matter, and transmitted same to the district court of Dallas county, Tex.; and on this record the case was tried in said court, after overruling Charles M. Orr's several motions to dismiss said appeal, to all of which he excepted. The case was finally tried in said court on March 30, 1897, and said court rendered judgment in favor of said J. H. Wright on his application, as herein set out and by him prayed for, and against the other appellants, from which judgment, after motion for new trial and exception, both the guardian and Charles M. Orr prosecute their appeal to this court, both parties having filed separate assignments of error.

The first assignment of error of appellant Charles M. Orr reads: "The court erred in not sustaining the motion of Charles M. Orr to dismiss the pretended appeal from the probate court of Dallas county,...