Reily v. Hare

• Citation: 280 S.W. 543
• Decision Date: 17 February 1926
• Docket Number: (No. 760-4358.)
• Parties: REILY v. HARE.
• Court: Supreme Court of Texas

280 S.W. 543

REILY v. HARE.

(No. 760-4358.)

Commission of Appeals of Texas, Section A.

February 17, 1926.

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

Suit by F. H. Reily against Silas Hare, administrator. Judgment for plaintiff in the Court of Civil Appeals was reversed and remanded in 269 S. W. 473, and plaintiff brings error. Affirmed.

J. R. Wood and Head, Dillard, Smith, Maxey & Head, all of Sherman, for plaintiff in error.

J. H. Wood and O. D. McReynolds, both of Sherman, for defendant in error.

BISHOP, J.

This is a suit by F. H. Reily, plaintiff in error, against Silas Hare, administrator of the estate of Samuel Bailey, deceased, originating in the district court of Grayson county. In his petition upon which trial was had, he alleged that Silas Hare is the legally appointed, qualified, and acting administrator of the estate of Samuel Bailey, who died September 24, 1912, in Pottawatomie county, state of Oklahoma; that at the time of Bailey's death he had a small amount of property in the state of Oklahoma, and approximately $55,000 in cash on time deposit in the State National Bank in the city of Denison, Grayson county, Tex., which constituted his estate; that he executed his will, naming B. F. Hamilton, resident of the state of Oklahoma, executor; that after his death his will was admitted to probate in the state of Oklahoma, and Hamilton was by the probate court in that state appointed, and duly qualified, as executor; that Silas Hare was appointed administrator of said estate in Grayson county, Tex.; that in January, 1923, Reily instituted suit in the district court of Pottawatomie county, Okl., against B. F. Hamilton as executor, for his fees accruing by virtue of his services to said Hamilton as executor of said estate as an attorney at law; that Hamilton was duly served with process in said suit and appeared therein, and on January 20, 1923, judgment was rendered by said court in favor of plaintiff in error against B. F. Hamilton, executor of said estate, for the sum of $6,000, with 6 per cent. interest; that said estate being administered in Pottawatomie county, Okl., was insolvent, and that B. F. Hamilton had no funds or property belonging to the estate with which to pay the judgment, but that Silas Hare, as administrator of said estate in the county of Grayson, state of Texas, did have funds and money belonging to said estate in his hands more than sufficient to pay this judgment; and that a copy of said judgment, as a claim against said estate, duly verified as required by law, had been duly presented to Silas Hare, administrator of said estate, for allowance, and was by him rejected. In his petition, Reily prayed that he have judgment for his debt evidenced by the judgment of the district court of Oklahoma as his claim.

Defendant in error, Silas Hare, administrator, made answer to this petition by general demurrer and special exceptions, which were overruled. He also interposed general denial and special pleas.

The plaintiff in error introduced in evidence: (a) A copy of the order of the probate court of Pottawatomie county, Okl., probating the will and appointing Hamilton executor, his oath and bond, letters testamentary issued to him, and his oath qualifying as executor; (b) the petition in the suit of F. H. Reily against B. F. Hamilton, executor of the estate of Samuel Bailey, deceased, in the district court of Pottawatomie county, Okl., on his claim for attorney's fees, together with waiver of service by Hamilton, and his agreement that the cause might be heard by the court at any time, and the decree of said district court entered on the same day the petition and waiver were filed, establishing Reily's claim in the sum of $6,000; (c) the order of the district court of Grayson county, Tex., appointing Silas Hare permanent administrator of the estate of Samuel Bailey, deceased, which was certified to the county court of Grayson county for observance, together with bond and oath showing qualification as such administrator, and evidence showing that said administration was still pending in the probate court of Grayson county, Tex.

On this petition and evidence, the district court rendered judgment in favor of Reily, plaintiff in error, holding that the judgment of the district court of Pottawatomie county, Okl., obtained by Reily against Hamilton as executor, was conclusive, notwithstanding defendant in error may have had a perfect defense to Reily's claim for attorney's fees at and prior to the time of its rendition, and rendered judgment for Reily against Hamilton as administrator for the amount of the Oklahoma judgment. The Court of Civil Appeals reversed this judgment, and remanded the cause, holding that the judgment rendered by the district court of Pottawatomie county, Okl., in favor of Reily against the executor, Hamilton, was not conclusive against Hare as administrator of the estate in Texas, and that Reily could not here maintain his suit solely on the judgment rendered by the Oklahoma district court. 269 S. W. 473. The question here presented is whether the Court of Civil Appeals is correct in this holding. If it is, all other assignments become immaterial.

In the administration of the estate of a deceased person, the purpose of the presentation and allowance of a claim is to establish same in order that the executor or administrator may be required to pay the amount thereof from the assets in his hands. When the claim is approved by the executor or administrator and allowed by the probate court, the action of the court does not have the effect of a personal judgment as against the executor or administrator, but operates only on the assets belonging to the estate over which the court has jurisdiction. The probate court in the state of Oklahoma had no jurisdiction over the assets in the hands of the administrator appointed by the probate court in the state of Texas, though such assets are part of the same estate as that the Oklahoma court is administering. The estate is the same, but the assets over which the two courts have jurisdiction are different. The approval of the claim by the Oklahoma court is in no way binding on the Texas court.

The only force and effect the judgment here sued on had in the state of Oklahoma was to establish the claim as a charge against the assets, if any, in the hands of Hamilton belonging to the Bailey estate. This judgment, when given full faith and credit, cannot have any force and effect over the assets of the estate in the hands of Silas Hare, the administrator in Texas. While there may be, and is, such privity between the executor in Oklahoma and the administrator in the state of Texas as would permit the attorney employed by the former to present his claim for attorney's fees to the latter for the purpose of having same allowed as a charge against the assets of the estate in the hands of the latter, and while he had the right, in case such claim was refused, to institute suit in the proper court in Texas to establish his claim as a charge against such assets (Pendleton v. Hare [Tex. Com. App.] 231 S. W. 334), he had no right to sue on a judgment rendered in Oklahoma which had no effect other than to establish a claim against the assets in the hands of the executor in that state, and recover on the theory that such judgment is binding on the Texas courts. If he has a valid claim, he may establish it here. While there is privity between the executor and administrator, there is no privity between the courts of the two states in regard to the separate and distinct assets of the estate over which each has exclusive jurisdiction. The Oklahoma court had no jurisdiction to establish the claim for attorney's...