Roy v. Whitaker

• Decision Date: 10 March 1898
• Citation: 50 S.W. 491
• Parties: ROY et al. v. WHITAKER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 491

ROY et al. v. WHITAKER et al.¹

Court of Civil Appeals of Texas.

March 10, 1898.

Appeal from district court, Smith county; J. G. Russell, Judge.

Certiorari by R. E. L. Roy and others against H. M. Whitaker and others. There was a judgment dismissing the petition, and petitioners appealed. Judgment affirmed on motion for rehearing, based on answers to questions certified to the supreme court. 48 S. W. 892, and 49 S. W. 367.

Hogg & Robertson, for appellants. Marsh & McIlwaine, Duncan & Jones, and J. W. Fitzgerald, for appellees.

WILLIAMS, J.

The court below sustained exceptions to the petition of appellants, and, upon their declining to amend, dismissed the suit; and the appeal is taken from its judgment. The proceeding was brought in the district court by appellants, as legatees and devisees under the will of A. M. Murphy, deceased, and as heirs of their deceased mother, Mrs. Elizabeth Murphy, to revise by certiorari the proceedings of the county court in the administration of the estate of the former, of which the appellee Whitaker had been appointed and acted as administrator de bonis non with the will annexed. It was instituted within the time limited by the statute. The petition, among other things, showed the following facts: Mrs. Murphy, the wife of A. M. Murphy, and other 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 were 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 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 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 taken touching him, 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 deceased were engaged at the death of the latter, and which the executor was authorized by the will to carry on. On the 5th day 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 VIII. 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 31, 1888); and the court on the 8th day of February, 1890, entered an order annulling it for the reason thus 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 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 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, and attorney's fees, and 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 court below, upon exceptions, held that the county court had jurisdiction to grant the administration attacked, and, this being true, that there was a misjoinder of parties and causes of action; and this ruling is the subject of the briefs and arguments that have been submitted. The leading contention of appellants is that after the probate of the will, the qualification of the executor, the issuance of letters, and the filing and approval of the inventory and appraisement, the jurisdiction of the county court over the estate and the executor ceased; that the executor had no right to resign, and the court no power to discharge him upon his request, and to appoint an administrator; and that, therefore, the appointment of Whitaker, and all acts done in the administration by him, are void. We are, we trust, duly sensible of the importance of the question thus raised, and of the gravity of the consequences which may flow from a decision nullifying proceedings of the character in question. If it is true that the court was without power to grant letters of administration upon this estate, it is true, also, that such letters conferred no authority, and afford no protection to the administrator and others acting under them, and all the acts of the administrator and subsequent orders of the court must be held of no effect. Nothing but the most careful consideration, producing the clearest conviction of the truth, should induce a court to give its sanction to a proposition leading to such consequences. The decision of the question depends upon a proper construction of the constitutional and statutory provisions of this state relating to the jurisdiction of the county court over estates of deceased persons. That court is clothed by the constitution with capacity to grant letters testamentary and of administration upon such estates. Its jurisdiction over the subject is general, and its orders are entitled to all of the presumptions which are indulged in support of the judgments of other courts of general jurisdiction when questioned in collateral proceedings. But, while the nature and extent of the powers which the court may exercise is thus defined by the constitution, jurisdiction over a particular subject-matter which might be brought within its control by proper proceedings may fall for want of the process prescribed by law as essential to make it...