Reed v. Harlan

• Decision Date: 11 February 1937
• Docket Number: No. 1851.,1851.
• Parties: REED et al. v. HARLAN et al.
• Court: Texas Court of Appeals

103 S.W.2d 236

REED et al. v. HARLAN et al.

No. 1851.

Court of Civil Appeals of Texas. Waco.

February 11, 1937.

Rehearing Denied March 18, 1937.

Appeal from District Court, Falls County; Terry Dickens, Judge.

Proceedings in the matter of the estate of W. E. Kyser, deceased, wherein Thomas D. Harlan and H. W. Carver sought priority for their claims, and Mrs. Emma Reed and others, claimants, resisted. From a judgment of the district court affirming order of the county court in favor of claimants Harlan and Carver, claimants Mrs. Emma Reed and others appeal.

Affirmed.

Cecil R. Glass, of Marlin, for appellants.

Bartlett, Carter & Rice, of Marlin, and J. W. Spivey, of Waco, for appellees.

GALLAGHER, Chief Justice.

The issues presented for determination on this appeal are few, but the situation out of which such issues arose is rather complicated. W. E. Kyser, a resident of Falls county, died on May 3, 1933. E. E. Kyser, his son, on May 17, 1933, filed an application in the county court to be appointed temporary administrator, and, after due notice had been given, permanent administrator. The county judge entered an order thereon appointing the applicant temporary administrator, with authority to settle and adjust certain insurance matters concerning the estate and to care for and, if necessary, sell certain livestock. The bond of the temporary administrator was fixed at the sum of $10,000, which he gave. The condition of such bond and the terms of the oath taken by him were in accord with the requirements of the statutes in such cases. Citation on said application was duly issued and posted, and thereafter, on June 6, 1933, the court ordered that said temporary administration be made permanent. No reference was made in said order to either bond or oath. Without further qualification, said temporary administrator proceeded to function as permanent administrator without question until April 3, 1935. No action under the special powers granted in his appointment as temporary administrator was shown. Thereafter, on August 17, 1933, the court entered an order reciting that letters of administration had previously been granted, appointing appraisers and directing return of inventory, appraisement, and list of claims. Said administrator, on August 25, 1933, returned his inventory and appraisement and the same was received and approved by the court. Such inventory showed a number of tracts of land, undivided interests in other tracts, and certain mineral leases, all of which were listed and valued separately. The appraised value of said real estate amounted in the aggregate to $45,706, and in addition thereto, a life insurance policy of the value of $9,371 was listed. Said inventory recited that the real estate therein listed and valued was encumbered for the principal amount of $34,245.65. An exhibit filed herein by said administrator shows that, after the entry of said order making his appointment permanent, he collected life insurance and other claims due the estate in the sum of $12,664.77; that one life insurance claim was, under order of the court, compromised for 50 per cent. of the face value thereof; that he sold various tracts of land; that said sales were approved by the court and proper conveyances made to the several purchasers; that various claims against said state, amounting in the aggregate to more than $36,000, were presented to him, allowed and filed in said court, and that he performed divers and sundry other acts as such purported administrator. A personal claim filed by said administrator against the estate was challenged on the ground that it had not been filed in the county court within the time prescribed by law, and was therefore barred. None of the acts of said administrator are assailed herein as being lacking in intrinsic fairness nor is the regularity of any of the same questioned except on the ground that he had not given the bond and taken the oath prescribed by law for the qualification of permanent administrators.

Thomas D. Harlan, one of the appellees herein, who had a claim against said estate duly presented, allowed, filed, and approved within a year after the order of court appointing said E. E. Kyser permanent administrator herein, on April 3, 1935, filed in said administration a protest against the approval of certain other claims amounting to approximately $22,000, on the ground that, notwithstanding such claims had been duly approved by the purported administrator within one year after his appointment, the same had not been filed in the cause in the county court until after a full year had elapsed. He asked the court to disapprove said claims, or, in the alternative, to assign them all to the fifth class and to expressly provide that none of them should be paid until after his claim was paid in full. He also asked that the administrator be required to return an exhibit showing the condition of the estate. The exhibit hereinabove referred to was filed in pursuance of said demand. Appellee H. W. Carver, who also held a claim against the estate presented, allowed, and filed in court within one year after the order of appointment, intervened in the proceeding in the county court, adopted the pleadings of appellee Harlan, and asked the same relief.

Appellants, Mrs. Emma Reed, C. A. McCoy, trustee of the Marlin-Citizens National Bank, Marlin, Tex., Robert D. Peterson, trustee for Falls county and state of Texas, Marlin Lumber Company, a corporation, Mrs. W. P. Dashiell, and the Citizens National Bank of Marlin, Tex., all of whom held claims against said estate duly presented and allowed but not filed in the county court within one year from the order appointing said permanent administrator, on April 15, 1935, filed in said proceeding in the county court an answer to the protest filed by appellee Harlan. While said appellants constituted only a part of the creditors holding claims against said estate which had not been filed within the year as aforesaid, their respective claims amounted in the aggregate to approximately $20,000. Appellants, in said answer, assailed the validity of the permanent administration and all the acts performed by the purported administrator in the course thereof, on the ground that he had not given the bond and taken the oath required of permanent administrators by the statutes. They alleged that his appointment as permanent administrator and all the acts performed by him as such were absolutely void, or, in the alternative, voidable, and that the same, and all the same, should be set aside and held for naught. No one except said administrator was made a party to this pleading and no process of any kind was issued thereon. None of the other parties interested in said estate appeared at said hearing except the administrator and appellees Harlan and Carver. The county judge, at the conclusion of such hearing, on July 31, 1935, entered two separate orders, in one of which he specifically held and adjudged that said E. E. Kyser was then and had been continuously since the 6th day of June, 1933, the duly and legally appointed, qualified and acting permanent administrator of the estate of W. E. Kyser, deceased, and that he had given the bond and taken the oath required by law. We deem it proper to state in this connection that it was conceded that the only bond given and the only oath taken by said E. E. Kyser were the bond and oath given and taken by him as temporary administrator. The county judge, in the other order, disallowed the personal claim of the administrator hereinbefore referred to, and held that each of the claims assailed by appellee Harlan be assigned to the fifth class and payment thereof postponed until after the claims of appellees Harlan and Carver and all other creditors filed within the first year of such administration had been paid in full.

Appellants prosecuted an appeal from said orders to the district court. A hearing was had therein on November 1, 1935, and judgment entered declaring that it was not necessary to the validity of the order appointing said permanent administrator nor to the validity of his acts thereafter as such that the county judge, in said order, should have required another bond and oath, or either, nor that he should have given another bond or oath, or either; that his appointment was not a nullity and his subsequent acts in such capacity neither void nor nullities, and that he should be deemed and held to have been and had in fact been the duly appointed permanent administrator of said estate since June 6, 1933. The remainder of said judgment was, so far as the issues involved in this appeal are concerned, substantially the same as the judgment of the county court from which the appeal was prosecuted. The administrator has not appealed from the order of the court disallowing his personal claim. Mrs. Reed and the other appellants hereinbefore recited present...