State v. Gillette's Estate

• Decision Date: 28 November 1928
• Docket Number: (No. 1073-4707; Motion No. 8065.)
• Citation: 10 S.W.2d 984
• Parties: STATE v. GILLETTE'S ESTATE et al.
• Court: Texas Supreme Court

10 S.W.2d 984

STATE v. GILLETTE'S ESTATE et al.

(No. 1073-4707; Motion No. 8065.)

Commission of Appeals of Texas, Section A.

November 28, 1928.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit on behalf of the State of Texas, by N. S. Long, District Attorney, against Mrs. Ada Lawrence and husband, to escheat land composing part of estate of F. G. Gillette. Judgment for the State was reversed by Court of Civil Appeals, and the case remanded (286 S. W. 261), and the State brings error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed on rehearing.

Superseding opinion in 5 S.W.(2d) 131.

M. S. Long, Dist. Atty., and Kirby, King & Overshiner, all of Abilene, for the State.

Milton E. Lawrence and J. M. Ferrell, both of Eastland, for defendants in error.

On Motion for Rehearing.

CRITZ, J.

This case involves the constitutionality of chapter 16, Senate Bill No. 165, Second Called Session of the 36th Legislature, entitled "An act creating a county court at law for Eastland county." The act is also found in Vernon's Revised Civil Statutes 1925, articles 1970 — 142 to 1970 — 152, inclusive. In our original opinion, adopted by the Supreme Court on the 28th day of March, 1928, and found in 5 S.W.(2d) 131, we held that the act was void, but, since the record showed that the county judge of Eastland county had entered all the orders and decrees, and the other proper officers of said county had also acted in all probate matters involved in this suit in their proper official capacities, that the mere fact that they used the superfluous words "at law" in so acting did not invalidate such probate proceedings. On motion for rehearing it is pointed out to us that we were in error in the above holding; and we now find that the record conclusively shows, and it is admitted by all parties to the suit, that, since the above act is purported to have gone into effect, Eastland county has had a county judge who has presided over the "County Court" and a purported judge of said purported "County Court at Law," who has presided over said "County Court at Law," and said two judges are not the same person. Furthermore, it is conclusively shown and admitted by all parties to the suit that none of the judgments, orders and decrees involved in the purported probate proceedings under consideration in this case were made or rendered by the county judge of Eastland county, or any one in possession of the office of county judge, or claiming to act as such, but that all of said purported orders, judgments, and decrees were made and entered by the purported judge of said "County Court at Law," acting in such purported official capacity. Our confusion in this matter was caused by that portion of section 2 of the act which reads as follows:

"The County Judge of Eastland County shall be the judge of the County Court at Law for Eastland County, Texas."

We presumed, from the above part of the act, that its provision had at least been attempted to be carried out. In view of the above mistaken conclusion in our original opinion, we now withdraw the same, and here and now substitute the following opinion in lieu of, and to take the place of, said original opinion:

Substitute Opinion.

This suit was originally instituted in the district court of Taylor county, Texas, for and on behalf of the state of Texas, by Hon. N. S. Long, district attorney of the district in which Taylor county is located, against Mrs. Ada Lawrence and her husband, H. E. Lawrence, to escheat 60 2/3 acres of land situated in Taylor county, Texas, to the state. On trial of the case in the district court of Taylor county, judgment was rendered for the state. The case was appealed by Mrs. Ada Lawrence and husband to the Court of Civil Appeals of Texas for the Eighth District at El Paso, which court reversed the judgment of the district court and remanded the case to the district court of Taylor county for a new trial. 286 S. W. 261. The case is now before this court on writ of error granted on application of the state of Texas.

The petition in this case is in two counts. The first count sets up in substance the following alleged facts:

F. G. Gillette died in November, 1918, seized and possessed of the 60 2/3 acres of land in controversy in this suit. On February 20, 1919, temporary letters of administration upon said estate were issued to H. E. Lawrence by the county court of Eastland county. No further proceedings were had in the county court with reference to this estate. In April, 1923, H. E. Lawrence applied to the county court at law of Eastland county for letters of administration, and on May 18, 1923, said county court at law entered an order appointing him administrator, and he attempted to qualify and sell the land to L. Gann in September, 1923, under application made to, and order of sale made by, said county court at law. Gann conveyed the land to Mrs. Ada Lawrence, wife of H. E. Lawrence. It was alleged that the attempted appointment of H. E. Lawrence as administrator of said estate, and all proceedings thereunder, were null and void, because, under the Constitution of this state, the county court at law of Eastland county had no jurisdiction in probate matters, and that the act creating said court was unconstitutional and void, in so far as it attempted to confer probate jurisdiction on said court, and that therefore no valid administration had been had or was then pending upon the Gillette estate.

The second count in the petition is in the alternative, in that it alleges that, if the administration proceedings of the county court at law were valid, the appointment of Lawrence as administrator, and the sale of the property to Gann, and Gann's conveyance to Mrs. Lawrence were fraudulent, for the reason that the land was sold for a grossly inadequate consideration, and in reality a sale by the administrator to himself, the title being ultimately vested in the wife for his benefit; that in truth Gann paid nothing for the land; that the administrator filed and caused to be approved false and fraudulent claims in his favor against the estate; that he caused the land to be sold at private sale in order to acquire it for himself, and the land would have brought a much higher price if it had been sold at public sale; that Mrs. Lawrence acquired the land with notice and knowledge of the fraud of the administrator, wherefore she held the land under a constructive trust in favor of the state, etc.

The case was tried before the court without a jury, and the court filed its findings of fact and conclusions of law. The court expressly refused to pass upon the first count in the petition, involving the constitutionality of the act of the Legislature in creating the county court at law for Eastland county, and attempting to confer probate jurisdiction on said court, but entered a judgment for the state on the second count.

The Court of Civil Appeals in effect holds that the act creating said court and conferring probate jurisdiction thereon is constitutional and valid, under section 1 of article 5 of our state Constitution. We cannot agree to this holding. The act attempting to create the county court at law for Eastland county, Texas, is chapter 16, page 46, of the Acts of the Second Called Session of the 36th Legislature. The act is also set out in Vernon's Revised Civil Statutes of Texas, 1925, arts. 1970 — 142 to 1970 — 152, inclusive.

An examination of said act will disclose that it attempts to confer on the county court at law of Eastland county the general probate jurisdiction conferred by the Constitution on the county court. Said act attempts to give said county court at law jurisdiction to probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards. It further attempts to give said county court at law jurisdiction to grant letters testamentary and of administration, and, in effect, to do all and every act, and exercise all probate jurisdiction, of the county court. Further, the wording and effect of said act is to attempt to deprive the county court of the probate jurisdiction expressly conferred and vested by the Constitution in the county court.

In construing and interpreting Constitutions, certain well-known rules obtain, as follows:

(a) It is the duty of the court, if possible, to give effect to every part and every word of article 5 of our Constitution, and of every section of said article, and, unless there is a clear reason to the contrary, no portion of said article should be treated as superfluous, and, further, it is the duty of the court to avoid a construction of said article 5 which would render any portion or section thereof meaningless or inoperative. Also, in construing the meaning of a particular word, resort may be had to other sections of the same instrument for the sense in which the word is used. 6 R. C. L. p. 48, par. 42.

(b) That the well-recognized rule, "expressio unius est exclusio alterius," and the expression of one thing in a Constitution may necessarily involve the exclusion of other things not expressed. Id. p. 49, par. 43.

(c) That exception of any particular case presupposes that all those which are not included in such exception are embraced within the terms of a general grant of prohibition. Id.

Our Supreme Court, speaking through Judge Greenwood, in the case of Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, has clearly announced the rule of law in this state that "the rule of implied exclusion is no more binding in construing statutes than in interpreting Constitutions," and that "it is a rule of construction of constitutions that ordinarily, when the circumstances are specified under which any right is to be acquired, there is an implied prohibition against" the Legislature "to either add to or withdraw from the circumstances specified." Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, and authorities...