Rotan Grocery Co. v. Pate

• Decision Date: 27 May 1914
• Docket Number: (No. 5360.)
• Citation: 169 S.W. 378
• Parties: ROTAN GROCERY CO. et al. v. PATE.
• Court: Texas Court of Appeals

169 S.W. 378

ROTAN GROCERY CO. et al. v. PATE.

(No. 5360.)

Court of Civil Appeals of Texas. Austin.

May 27, 1914.

Rehearing Denied July 1, 1914.

Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by Mrs. Eppie Pate, as administratrix, etc., of the estate of W. W. Pate, deceased, against the Rotan Grocery Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. D. Williamson, of Waco, for appellants. J. N. Gallagher and Sam E. Stratton, both of Waco, for appellee.

RICE, J.

The appellee, Mrs. Eppie Pate, is the surviving widow of W. W. Pate, deceased, who died intestate in McLennan county on or about October 18, 1912, leaving surviving him his said widow and five minor children. At the time of and prior to his death he was conducting a general mercantile business at Hoehn in said county, where he resided with his family; and, though possessed of considerable property, all of which was community estate between himself and his said wife, it appears that his estate was largely indebted and in fact insolvent. Shortly after his death, on to wit, October 22, 1912, his said wife, Mrs. Eppie Pate, made the following conveyance to the Rotan Grocery Company, viz.:

"The State of Texas, County of McLennan.

"Know all men by these presents: That for and in consideration of one dollar, in hand paid by the Rotan Grocery Company of Waco, Texas, the receipt of which is hereby acknowledged, and the further consideration of their agreement to take charge of the business of W. W. Pate, deceased, and wind it up as expeditiously as possible, converting everything pertaining to said estate or business into cash, for the pro rata benefit of all creditors, share and share alike, without any preference whatever, I do hereby bargain, sell and convey unto the said the Rotan Grocery Company my entire mercantile business at Hoehn, Texas; said business consisting of a stock of general merchandise, such as dry goods, groceries, hardware, notions, etc. All notes not heretofore hypothecated, all books, accounts, fixtures, etc. Also 260 bales of cotton subject to the claim of the Leroy Bank; also my equity in all notes which have been hypothecated; also 100 acres of land in Runnels county, Texas. Title to said stock of merchandise, fixtures, notes and accounts and 100 acres of land; also the 260 bales of cotton. I will warrant and defend against the lawful claims of all persons whomsoever claiming or to claim the same or any part thereof.

"Witness my hand this 22nd day of October, 1912. [Signed] Eppie Pate.

                  "Witnesses
                     "C. L. Dickson
                     "W. L. Dugger
                     "D. T. Janes."
                

After the execution of said instrument, the Rotan Grocery Company immediately took possession of said stock of goods and fixtures, which inventoried $3,695, and sold the same to its codefendant, Adolph Fricke, at 90 cents on the dollar of invoice value, aggregating $3,325, which was the reasonable market value thereof, and which sum said Rotan Grocery Company received in cash and now has on hand. That on the 6th of January next thereafter, appellee was duly appointed administratrix of said estate by the county court of McLennan county, and qualified as such, and subsequently, after demand on appellants for and refusal on their part to deliver said property, brought this suit against them to recover possession thereof, alleging that said property was necessary for the purposes of administration, and that said probate court had ordered her to demand possession thereof, and, in the event of refusal to bring suit therefor. That her homestead was incumbered. That there was not on hand at the time of the death of her husband all the property exempt by law to families of deceased persons. That it will be necessary to make an allowance out of the estate of the deceased in lieu of such exempt articles, and that it will be necessary for the probate court to set aside an allowance for the support and maintenance of said surviving wife and minor children. The Rotan Grocery Company, after special exception and general denial, sought to defeat recovery by reason of said conveyance of said property to it by Mrs. Pate; and Fricke, after adopting the answer of the Rotan Grocery Company, further pleaded that in the purchase of said stock of goods, wares, and merchandise by him from that company he had consulted with Mrs. Pate, had conferred with her about the rental value of the store in which the goods were situated, and she concurred in and agreed to such sale to him, and before his purchase agreed to rent him the storehouse in which the goods were situated, and thereafter did so, and that by reason thereof she was estopped from alleging a conversion of said stock of goods by him; that in the event he should be held liable for such conversion, then he prayed judgment over against his codefendant, the Rotan Grocery Company in like amount. Appellee filed a general demurrer, which was overruled, and a number of special exceptions to defendants' answers, all based upon the theory that the conveyance made by her to the Rotan Grocery Company on October 22, 1912, for the benefit of the creditors of her deceased husband, was rendered void by her appointment and qualification as administratrix of said estate, and that in any event she was entitled to possession of said property for administration under the orders of the probate court of McLennan county, which exceptions were sustained. A jury being waived, judgment was rendered in favor of appellee against the Rotan Grocery Company and Adolph Fricke in the sum of $3,325, with interest thereon from February 10, 1913, at 6 per cent. It was further adjudged that the defendant Fricke have and recover of and from his codefendant the Rotan Grocery Company judgment for said sum of $3,325, from which judgment both the Rotan Grocery Company and Fricke have appealed to this court.

It was shown that there had been duly presented to the administratrix, allowed, approved, and established by the probate court, as claims against the estate of the deceased, the following: First-class claims, amounting to $531, third-class claims, $1,250, which was a vendor's lien note on 100 acres of land belonging to the estate, and $2,700, which was a vendor's lien on the homestead, the reasonable value of said homestead in excess of said indebtedness being $1,800, also fourth-class claims, amounting to $600. It was further shown that no...