Satterfield v. Burke, 15333

• Decision Date: 04 September 1974
• Docket Number: No. 15333,15333
• Citation: 516 S.W.2d 693
• Parties: Robert W. SATTERFIELD, Appellant, v. Lela Ruth BURKE, Appellee.
• Court: Texas Court of Appeals

Page 693

516 S.W.2d 693

Robert W. SATTERFIELD, Appellant, v. Lela Ruth BURKE, Appellee.

No. 15333.

Court of Civil Appeals of Texas San Antonio.

Sept. 4, 1974.

Rehearing Denied Oct. 16, 1974.

For majority opinion see Tex.Civ.App., 514 S.W.2d 138.

CADENA, Justice (dissenting in part).

Section 149A, Texas Probate Code, Tex.Rev.Civ.Stat.Ann., V.A.T.S., provides that any person interested in an estate in the process of being administered by an independent executor may, after the expiration of 15 months from the date of the probate of the will appointing an independent executor, demand an accounting from the independent executor. Upon receipt of such demand, the independent executor is required to furnish a written accounting, sworn to and subscribed by the independent executor, setting forth in detail the various matters specified in that section. The statute expressly provides that if the independent executor does not comply with the demand for an accounting within 60 days after receipt of the demand, the person making the demand may compel compliance by an action in the probate court or by a suit in the district court, and that, following a hearing, the court shall enter an order requiring the accounting to be made at such time as it deems proper under the circumstances.

Here, appellant, on August 8, 1973, filed in the probate court an instrument described as 'Demand for Accounting.' This instrument is addressed to appellee and is supported by a certificate by appellant's attorney reciting that a true copy of such demand had been served on appellee's attorney. This instrument does not contain any language seeking any action by the probate court.

On October 24, 1973, appellee filed in the probate court an instrument designated 'Final Accounting.' This instrument contains a prayer to the effect that, following notice to all interested parties, the court enter an order '. . . ratifying and approving the Final Accounting; closing the estate; and discharging the executrix from any further liability.'

It is clear that the 'final accounting' filed in court by appellee is not the accounting demanded by appellant. It is not sworn to or subscribed by appellee, the independent executrix, as required by Section 149A. Instead, it is subscribed by appellee's attorney, and is supported merely by the 'affidavit' of such declaring that he has read the accounting and that the allegations contained in it are true and correct 'to the best of his knowledge.'

On January 31, 1974, appellant filed his 'Objections and Exceptions to Final Accounting.' Appellant complained, Inter alia, that the accounting did not comply with the requirements of Section 149A, and prayed, among other things, that appellee be required to comply with the requirements of Section 149A.

In view of the provisions of Section 149A, it cannot be doubted that the probate court had jurisdiction to order appellee to furnish appellant with an accounting as provided for in such section. Therefore, insofar as appellant sought to compel appellee to comply with the provisions of Section 149A, the court below clearly erred in holding that it lacked jurisdiction, including, of course, the power to determine whether the instrument filed by appellee was a sufficient compliance with appellant's demand for...