Roy v. Whitaker

• Citation: 49 S.W. 367
• Parties: ROY et al. v. WHITAKER et al.
• Decision Date: 09 February 1899
• Court: Supreme Court of Texas

49 S.W. 367

ROY et al. v. WHITAKER et al.

Supreme Court of Texas.

February 9, 1899.

On motion for rehearing. Modified.

For former opinion, see 48 S. W. 892.

BROWN, J.

Upon re-examination of the question, we have concluded that we can properly answer the sixth question propounded by the court, which reads as follows: "Is it competent in this proceeding for the plaintiffs to make their claim to one-half of the real property sold, which they inherited from their mother, the ground for reviewing the orders made in the administration of their father's estate, because such orders were for the sale of the whole property?" We construe this question to relate only to the review of the orders of sale, and not to other orders made in course of the administration, and to the question so understood we answer as follows:

The plaintiffs have not the right to prosecute a writ of certiorari from the probate court to the district court for the purpose of reviewing orders of the probate court made in the administration of the estate of A. M. Murphy, Sr., deceased, which directed the sale of lands, the community property of A. M. Murphy and his wife, who died prior to the death of her husband, there being no debts against the community estate.

The plaintiffs, as heirs of their mother, were not parties to the administration upon the estate of their father, and are not bound by the orders of the probate court so far as they affect the interest which they inherited from their mother in the community estate. Thompson v. Cragg, 24 Tex. 582; Cole v. Grigsby, 89 Tex. 223, 35 S. W. 792. Those orders and sales do not affect the title of the plaintiffs in the land sold in so far as they claim under their mother, unless the sale was ordered and made to raise money with which to pay the community debts of A. M. Murphy and his wife. Soye v. Maverick, 18 Tex. 100; Carter v. Conner, 60 Tex. 52; Moody v. Butler, 63 Tex. 210.

A purchaser, under such order, who claims that the sale has the effect to pass the right of the heirs of the wife, must establish the fact that the sale was made to pay a debt of the community. Moody v. Butler, 63 Tex. 210. In the case last cited, the court, speaking by Chief Justice Willie, said: "In order to give the deed of Joel Clapp's executor the effect of passing title to the entire land, as well that portion of which he died possessed as of the share inherited by the children from their mother, it was necessary that there should have been community...