Rowland v. Moore, 8101.

• Decision Date: 07 July 1943
• Docket Number: No. 8101.,8101.
• Citation: 174 S.W.2d 248
• Parties: ROWLAND et al. v. MOORE.
• Court: Texas Supreme Court

174 S.W.2d 248

ROWLAND et al. v. MOORE.

No. 8101.

Supreme Court of Texas.

July 7, 1943.

Rehearing Denied October 20, 1943.

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

Proceeding by M. H. Moore, independent executor of the last will of Green A. Cole, deceased, for approval of final account as trustee and independent executor wherein Anna Pearl Moore, individually and as independent executrix of M. H. Moore, deceased, was permitted to intervene after death of M. H. Moore, and court entered order allowing claim of Moore against trust estate, which was subsequently set aside by probate court rendering it. To review a judgment of the Court of Civil Appeals, 168 S.W.2d 911, affirming a judgment of the district court reinstating original judgment of probate court, Fannie Rowland and husband bring error.

Judgments of district court and Court of Civil Appeals reversed and rendered and remanded with directions.

Rogers & Spurlock, Otis Rogers, W. A. Hawkins, and C. H. Milliken, all of Ft. Worth, for appellants.

W. M. Short, of Ft. Worth, for appellee.

SHARP, Justice.

This suit was filed in the probate court of Tarrant County by petitioners as an application and motion to have the court vacate and set aside its order of May 31, 1939, approving the final account of M. H. Moore, independent executor of the estate of Green A. Cole, deceased. The ground of petitioners' application was that the court has no jurisdiction to approve the final account of an independent executor, or to allow a claim against the estate. After hearing, the court held that its previous order was void for want of jurisdiction, and rendered judgment setting it aside. Respondent appealed to the District Court of Tarrant County, which held that the order of May 31, 1939, was valid because the probate court did have jurisdiction to approve the final account and allow the claim, and entered judgment reinstating the order. On appeal the Court of Civil Appeals affirmed the judgment of the district court. 168 S.W.2d 911. Writ of error was granted by this Court on the point that the probate court had no jurisdiction to enter its order of May 31, 1939.

The will of Green A. Cole, deceased, appointed M. H. Moore as independent executor and trustee of his estate, without bond, as is provided by Articles 3436-3451, Vernon's Annotated Civil Statutes. He was to administer the trust for the benefit of testator's wife and two sons until the death of the last surviving beneficiary, at which time the property should "descend and be inherited according to the laws of the State of Texas." Calvin Cole, the last survivor, died May 14, 1937, and was survived by his widow and one daughter, Mrs. Fannie Rowland, petitioner. Moore duly qualified, took charge of the property of the estate, which appears to have consisted chiefly of an 86-acre farm, and administered the estate from December 22, 1908, until May 14, 1937, when Calvin Cole died. On September 3, 1937, he filed his final account as independent executor and trustee with the probate court of Tarrant County, which contained a personal claim of the executor against the estate, and a prayer that the account be approved and the claim allowed. The report shows that during the 29 years Moore had administered the trust he paid out $749.14 more than the total revenues he collected from the estate. The report shows that he expended a total of $1,409.96, including $542.85 in taxes and $242.50 funeral expenses of the testator's two sons, whereas he had received only $660.82. While the report was pending on the docket Moore died on October 25, 1938, and respondent was appointed independent executrix of his estate. Thereafter, on May 31, 1939, the court entered an order approving the final account and allowing the claim of the executor in the sum of $749.14. The court's order was limited to an approval of the account and allowing the claim; it made no reference whatever to the heirs of testator or to the partition of the estate. On August 19, 1939, petitioners filed their application with the probate court requesting it to set aside its order of May 31, 1939. Respondent, independent executrix of the estate of Moore, intervened. The probate court on August 31, 1939, held that it was without jurisdiction to enter the judgment of May 31, 1939. The district court set aside the judgment of the probate court, and certified its judgment to the probate court for observance.

The controlling question in this case was decided by this Court in the case of Lumpkin v. Smith, 62 Tex. 249, wherein it was held, in an opinion by Judge Stayton, that the probate court, which probated a will providing for the appointment of an independent executor under the statutes, had no jurisdiction to approve the final account of the executor or to allow a personal claim in his favor against the estate which accrued during his tenure as executor, there being no prayer for a partition or settlement of the estate. The statutes do not contemplate that the estate should be entirely withdrawn from the jurisdiction of the probate court, but that the appointment of an independent executor withdraws the estate from the supervision and control of the probate court, except in so far as some other statute may authorize the court to exercise its jurisdiction; and so long as it remains in the hands and under the control of the executor, the probate court has no jurisdiction to approve a claim against the estate. Articles 3436-3451, Vernon's Annotated Civil Statutes; McLane v. Belvin et al., 47 Tex. 493; Holmes v. Johns, 56 Tex. 41, 51; Lumpkin v. Smith, 62 Tex. 249; Griggs et al. v. Brewster, 122 Tex. 588, 62 S.W.2d 980; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Kopplin v. Ewald, Tex. Civ.App., 70 S.W.2d 608; Hutcherson v. Hutcherson, Tex.Civ.App., 135 S.W.2d 757, writ refused.

Where a will fails to distribute the entire estate or to provide a means for its partition, then the probate court has jurisdiction to approve the final account of the independent executor if filed in connection with, and as an incident to, a partition and settlement of the estate. Article 3442, Vernon's Annotated Civil Statutes; Lumpkin v. Smith, 62 Tex. 249; Shiner v. Shiner, 90 Tex. 414, 38 S.W. 1126; Fortune v. Killebrew, 70 Tex. 437, 440, 7 S.W. 759; ...