"In the above case the questions stated below have arisen, and are deemed material and essential to a proper decision of the case, and they are therefore certified for decision: The case is as follows: Within proper time, appellant Susie Murphy Roy instituted this action in the district court of Smith county to procure a revision by certiorari of the proceedings in the county court of that county had in an administration of the estate of her father, A. M. Murphy, deceased, of which appellee Whitaker had been appointed and acted as administrator. By an amendment subsequently filed, other children of Murphy, who were devisees and legatees under his will, were joined as plaintiffs. All of the plaintiffs sought relief, not only as devisees, etc., of their said father, but as heirs of their deceased mother, Mrs. Elizabeth Murphy. The allegations of the petition, which is very lengthy, are stated only so far as they are deemed essential to present the questions certified. The petition, among other things, showed the following facts: Mrs. Murphy, the wife of A. M. Murphy, and mother of appellants, died intestate in 1879, leaving a large community estate of herself and husband, against which there were no debts. A. M. Murphy died in 1886, leaving such estate, with no debts against it. By will he appointed his son Arch Murphy, Jr., as executor, and provided that no bond should be required of him, and no action taken in court, except to probate the will and file an inventory and appraisement. The will was duly probated. The executor qualified and filed the inventory, and received letters testamentary, and took charge and control of the estate on the 9th day of May, 1887. At the time of Murphy's death several of the children, including appellants, were minors, and living together as a family upon a homestead in Tyler; and by the will it was provided that they should remain together upon, and keep up, the homestead, under the care and protection of a lady who was named, until Susie Murphy, now Mrs. Roy, who was the youngest child, should become of age or marry, and that the place should not then be divided until it should cease to be a homestead for any unmarried children. It was averred that at all times the estate was possessed of ample means for the carrying out of this direction, and that the lady named as the protector and housekeeper continued capable and willing to perform her duty as such, and that the children had never abandoned or ceased to use the homestead until it was sold as alleged. On the 23d day of November, 1887, the executor
presented to the county court of Smith county the following paper: `In the Matter of the Estate of A. M. Murphy, Deceased. And now comes Arch Murphy, executor of the estate of A. M. Murphy, deceased, and says that he declines to further act as such executor, and hereby resigns said office and trust. Witness my hand this, the 23d day of November, 1887. Arch Murphy.' At the same time the court entered the following order: `Estate of A. M. Murphy, Deceased. November 23, 1887. On this day came on to be considered the resignation of Arch Murphy, executor of the estate of A. M. Murphy, deceased, and the same being fully considered by the court, is accepted; and the said Arch Murphy is hereby discharged from further liability as executor of said estate.' No notice of this proceeding was given, no account was filed by the executor, and no other action touching him taken, except that stated. At the same time, H. M. Whitaker was appointed temporary administrator of the estate, and continued to act as such until January 11, 1888, when he was appointed permanent administrator. Many wrongs are charged, of commission and omission, on the part of the administrator and of the court, at the inception and during the progress of the administration, which we deem it unnecessary to state with any great detail. Among them are the allowance by the administrator of fictitious claims, pretended to have been created by the executor in connection with a jewelry business in which he and the deceased were engaged at the death of the latter, and which the executor was authorized by the will to carry on. On the 5th of November, 1888, the administrator, after having sold the jewelry business, procured an order to sell a considerable part of the real estate, when there were no debts, and in violation of the will, which sale was made and confirmed. These are among the orders sought to be reversed, and the purchasers at such sales, and, in some instances, subsequent purchasers from them, are joined as parties to the suit. The will contained the following provision: `Item 8. It is my further will and desire that all my property shall be kept together until my youngest child shall become of age or marry, except perishable property, which may be disposed of at the discretion and judgment of my executor; except, also, as I may direct herein.' Application was made to the court by Oriville Murphy, one of the children, to annul this provision on the ground that it was impossible for it to be executed as was intended by the testator, because the executor was then dead (he having died April 30, 1888); and the court on the 8th day of February, 1890, entered an order annulling it for the reason stated. It is charged that the provision could have been executed, as the rents and revenues of the estate were amply sufficient for the purpose, and that the proceeding was had as a means of effectuating a conspiracy between certain ones of the defendants to procure a partition of the property and obtain possession of it. On the 22d day of July, 1890, the administrator applied for and obtained an order for the partition of the homestead and the other real estate unsold, and the commissioners were appointed, one of whom was one of the defendants charged with conspiracy; and four days later they made a special report that they could not divide the property, and recommended its sale, which report was adopted by the court, and the sale was accordingly ordered. In this decree it was also ordered that Mrs. Lena Clay, one of the children, might take property at its appraised value as one of the distributees. Under this decree the real estate described, including the homestead, was set apart and adjudged to Mrs. Clay at its appraised value, and was conveyed by her and her husband to parties who are joined as defendants. It is alleged that the husband of Mrs. Clay had become indebted to some of defendants, charged to be conspirators, and that this proceeding was conceived and carried through for the purpose of obtaining the property of the estate to Mrs. Clay, and, through her and her husband, to the others in payment of such indebtedness, and that no consideration was ever paid to the estate for it. In addition to the persons thus immediately connected with this proceeding, others, who are alleged to have purchased under them with notice of the matters stated, are joined. A number of other orders of the court allowing claims, administrator's charges, attorney's fees, allowing the administrator's final account and discharging him, are attacked, as being erroneous; and the petition seeks to have a trial de novo upon all of the proceedings, and to have the administration set aside in toto, as null and void, or the various orders complained of reviewed and reversed. The orders of sale and confirmation of sale of the homestead were attacked as being contrary to law and to the provisions of the will. And the orders for the sale of the one-half interest in the community property which had belonged to Mrs. Murphy were also attacked as being unauthorized and unlawful.
"Among a number of special exceptions not acted on in the court below, the defendants took the following special exceptions: `Further, and specially excepting to said petition, these defendants say that it appears on the face thereof that there is a misjoinder of parties defendant and of causes of action, in that these defendants, as purchasers of the property described in said petition as having belonged to the estate of A. M. Murphy, deceased, are joined with the administrators of said estate in a proceeding supposed, from some allusions in the petition, and some features of the prayer for relief, and for the character of the process prayed for and issued thereunder, to have been intended as a certiorari proceeding for the correction of the
errors in certain orders and decrees of the county court of Smith county entered in the matter of the said estate of A. M. Murphy, deceased, and in that the complainants have joined in this proceeding separate and distinct causes of action against separate individuals, such causes of action being altogether different in their nature; that is to say, plaintiffs make allegations, and seek thereon, as is shown by the prayer of the petition: (1) A revision and correction of every material order made in the said administration of said estate. (2) That the title to the real estate alleged to be held by these defendants be devested out of them, and invested in plaintiffs. (3) For a partition of all such property, except the homestead. (4) That the homestead be restored to the plaintiff Kate Murphy for occupancy. (5) That, in case this cannot be done, they ask a money judgment against the defendants, upon the ground of a conspiracy by which they...
