Shiner v. Shiner

• Decision Date: 31 March 1897
• Citation: 40 S.W. 439
• Parties: SHINER et al. v. SHINER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 439

40 S.W. 439

SHINER et al. v. SHINER et al.¹

Court of Civil Appeals of Texas.

March 31, 1897.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Proceeding in the county court by H. B. Shiner and W. B. Shiner, as executors of the will of Emma Shiner, deceased, against J. D. Shiner and others, for partition and distribution of the estate. The case was appealed to the district court, and from the judgment the defendants J. D. Shiner and Walter Shiner, by their guardian ad litem, appeal. Reformed.

Geo. C. Altgelt, for appellants. Henry E. Vernor, Franklin & Cobbs, and Hines & Bee, for appellees.

JAMES, C. J.

Emma Shiner died, disposing of her property by will substantially in the following manner: She directed her executors to collect the money due her, and, after payment of all debts, to divide the same. All her other property she required to be divided into six equal parts, and left one part to her daughter Mrs. Brady, and to each of her sons W. B. Shiner, M. K. Shiner, and H. B. Shiner. To the children of another son, M. C. Shiner, she gave one-sixth, and to the children of another son, J. V. Shiner, one-sixth. She directed that as soon as practicable her executors should proceed to procure a partition of her estate into six portions as above indicated, giving them the power to have this done without waiting 12 months after probate of the will. As to the shares of the said children, she provided that her executors, or their successors, who were named in the will, should take charge of, absolutely control, lease, rent, or sell, the same, according to their discretion, until such time as the children should, respectively, reach the age of 21, when such child's interest should be delivered by the executors. The will dispensed with bond, and provided that no action should be had in the courts relative to the estate other than the probate of the will, the filing of an inventory, and the partition. After partition, as before stated, the will provides for a continuance of the powers of the executors and their successors, as to the two-sixths that were to be distributed ultimately to the children of J. V. and M. C. Shiner. The will was probated in February, 1892, and on August 14, 1893,—the estate in the meantime having been managed by them,—the following application was filed by the executors in the county court: "Now come the executors, * * * and make application for the partition and distribution of said estate among the persons entitled thereto, all of whom are residents of Bexar county, Texas, to wit: H. B. Shiner, one-sixth interest; W. B. Shiner, same; M. K. Shiner, same; Mrs. Mary Brady, wife of Thomas F. Brady, one-sixth, —all adults. J. D. Shiner and Walter Shiner, one-twelfth each, and Milton Shiner, Gordon Shiner, and Vernon Shiner, minors, one-eighteenth each. The executors represent that the probable future expenses of administration and caring for said estate, and debts which may yet be allowed or established, approximate the sum of twenty thousand dollars. Wherefore executors pray for citation to issue, and for partition and distribution for allowance as stated, and for general and special relief." An appeal was taken to the district court, as the record shows, by Brady and wife; and an appeal is taken from the judgment of the district court by George C. Altgelt, in the capacity of guardian ad litem of J. D. and Walter Shiner.

The first question relates to the right of this guardian ad litem to prosecute the appeal. In this connection, the facts appear to be that M. C. Shiner had taken out letters of guardianship on the estate of said J. D. and Walter Shiner, and also on the estate of his own children, Milton, Gordon, and Vernon Shiner. In the district court the judge did not permit him to represent any of these minors, and appointed a guardian ad litem for Milton Gordon and Vernon Shiner, and appointed George Altgelt such guardian of J. D. and Walter Shiner. The record does not inform us of the grounds for this action. So far as the appointment of such representative for the minors J. D. and Walter Shiner is concerned, we believe it was proper and authorized, under the facts. Their regular guardian was Mr. C. Shiner, to whom was devised the one-sixth interest of his children in the event of their death before reaching 21 years of age. He was interested, therefore, against J. D. and Walter Shiner, in obtaining for his children an advantageous allotment. By the statute of 1870 (Pasch. Dig. 6973), it was expressly provided that the regular guardian was ineligible to represent his ward, if he was a party to the proceedings in his own right, or had an interest adverse to that of the ward. The existing statutes contain no such restriction. We believe, however, that, where the statute does not expressly declare a guardian so circumstanced to be capable of defending the interest of the ward, the disqualification of being adversely interested should be recognized, on well-settled legal principles. Sandoval v. Rosser, 86 Tex. 685, 26 S. W. 933. This being so, the court properly regarded him as not entitled to defend for these minors, and treated the case as one requiring a guardian ad litem for them. The guardian so appointed was authorized to take the appeal, and the case is properly here for revision. We may state another reason why the guardian of their estate was not properly their representative in this suit, which is that under the terms of the will he was not their guardian with reference to their shares of this estate. The will clearly provides that, after their portions shall have been designated, the executors should hold and control the same until distribution after the children had, respectively, reached majority.

The next matter to be considered is the appellate jurisdiction of the district court. It is claimed by appellants that the transcript from the county court shows no appeal bond, and that no such bond was in fact given. The statute does not require the bond to be in the transcript, and we would not look there for it. The original bond or affidavit is required to be filed in the district court, together with the transcript. The case was tried in the district court without question touching the bond, and the point is made in this court for the first time. The judgment refers to an appeal bond, and makes an adjudication thereon. The question of whether or not the failure of the record to disclose the appeal bond would necessitate holding on appeal that the lower court did not have jurisdiction has been considered, and decided against the position taken. Heath v. Garrett, 50 Tex. 264. The question of jurisdiction of the county court, under this will, to entertain the application for partition and settle the accounts of the execution, has been settled in favor of the jurisdiction by the supreme court's answer to a certified question in this case. 38 S. W. 1126. It was therefore competent for the court to provide for the payment to the executors of any sum found due them from the estate by reason of their administration. The manner...