Texas State Bank & Trust Co. v. St. John

• Decision Date: 04 March 1937
• Docket Number: No. 3512.,3512.
• Parties: TEXAS STATE BANK & TRUST CO. et al. v. ST. JOHN.
• Court: Texas Court of Appeals

Page 1104

103 S.W.2d 1104

TEXAS STATE BANK & TRUST CO. et al. v. ST. JOHN.

No. 3512.

Court of Civil Appeals of Texas. El Paso.

March 4, 1937.

Rehearing Denied April 1, 1937.

Appeal from District Court, Nueces County; Birge Holt, Judge.

Suit by Harry St. John, temporary administrator of the estate of A. D. Struthers, deceased, against the Texas State Bank & Trust Company, and Mrs. H. B. Kinser, who filed a cross-action. The original plaintiff having died, Alice St. John was appointed temporary administratrix of the same estate, and became the party plaintiff. To review a judgment granting plaintiff partial relief against the defendant bank, and granting the bank partial relief against plaintiff, and denying recovery on the cross-action, both defendants appeal, and plaintiff cross-assigns error.

Affirmed.

A. D. Struthers died August 15, 1934. On the 21st day of that month Harry St. John was appointed temporary administrator of the estate of the deceased, "with authority to take possession of all and every asset of the said estate, * * * and to institute and maintain such action or actions as might be necessary or useful in the collection and preservation of said estate."

October 4, 1934, said administrator brought this suit against the Texas Bank & Trust Company, hereinafter called the Bank, to recover the sum of $2,500, with interest, due upon a certificate of deposit for that amount dated June 29, 1934, payable to the order of the deceased 60 days after date on return of the certificate properly endorsed.

First amended petition was filed January 26, 1935. In this amendment the plaintiff enlarged his demand by seeking also to recover $500 on deposit in a checking account of deceased at the time of his death.

March 28, 1935, said administrator filed his second amended petition declaring upon the same causes of action, and joining as a party defendant Mrs. H. B. Kinser, a single woman, alleging she was asserting some claim to the funds sued for.

Later Harry St. John died, and on August 8, 1935, Alice St. John was appointed temporary administratrix of the estate of Struthers. The authority conferred upon her by the order appointing her is in the same language as the authority conferred upon her predecessor, except the words "and to continue" were interpolated preceding the words "and to institute."

August 26, 1935, the county court refused the application of Alice St. John to have her appointment made permanent, but provided her appointment as temporary administratrix should "remain in force pending contest relative to the probating of the will of A. D. Struthers, deceased, and until final determination thereof, and that the said Alice St. John continue to act as such temporary administratrix, under such powers and duties as defined in the original order of appointment heretofore entered herein." This order contains a recital that the court "finds that there is pending in the District Court of Willacy County, Texas, an appeal from the order of this court made on December 14, 1934, admitting to probate the will of A. D. Struthers, deceased, which said action of this court was contested herein by Mrs. Henrietta B. Kinser, who is appellant and contestant in the said action pending in the District Court of this County."

November 7, 1935, said administratrix filed third amended petition declaring upon the same causes of action set up in the next preceding amendment. In this amendment she set up the previous institution of the suit by her predecessor, and the order appointing him. She also set up her own appointment and the authority conferred upon her by the order of her appointment. She also set up the order of August 26th.

The defendants asserted the deceased had assigned the certificate of deposit to Mrs. Kinser.

The certificate bears these words on its reverse side: "Pay to the order of Mrs. H. B. Kinser."

There was also introduced in evidence by defendants a letter dated December 8, 1933, written by the deceased to Mrs. Kinser, at the bottom of which appears some writing in pencil purporting to assign the certificate of deposit to Mrs. Kinser.

As to the item of $500, that amount was paid to Mrs. Kinser after the death of Struthers upon his check for that amount in her favor dated two days before his death.

The pleadings need not be stated. The issues presented are sufficiently indicated by the issues submitted to the jury.

Briefly stated, the questions submitted inquired:

1. Whether the words above quoted appearing on the reverse side of the certificate were written by Struthers?

Conditional upon an affirmative answer to the foregoing:

2. Whether the writing of said words was obtained by Mrs. Kinser from Struthers through the exercise by her of undue influence upon him?

3. Whether the pencil writing on the bottom of the letter of December 8, 1933, was written by Struthers?

Conditional upon an affirmative answer to question 3:

4. Whether the pencil writing at the bottom of the letter above mentioned was obtained by undue influence practiced by Mrs. Kinser?

5. Whether the $500 check was obtained by undue influence?

Questions 1, 3, and 5 were answered in the negative.

Judgment was rendered in favor of the plaintiff against the Bank for the sums sued for, and in favor of the Bank against the administratrix for the sum of $500, establishing same as a claim of the fourth class against the estate and ordering it paid in due course of administration.

Mrs. Kinser was denied recovery upon her cross-action against the administratrix.

The Bank and Mrs. Kinser appeal.

E. B. Ward, of Corpus Christi, for appellants.

Boone, Henderson, Boone & Davis, of Corpus Christi, and Oscar M. Powell, of San Antonio, for appellee.

HIGGINS, Justice (after stating the case as above).

Those assignments are overruled which question the authority of the temporary administratrix to maintain the suit. Articles 3373 and 3378, R. S., authorize the appointment of temporary administrators with such limited powers as the circumstances of the case may require. There is nothing in the statutes which expressly or impliedly deny the probate court the power to confer upon a temporary administrator power to institute and maintain suits in behalf of the estate. Such an administrator may institute and maintain such a suit if the court appointing him has so authorized. Callahan v. Houston, 78 Tex. 494, 14 S.W. 1027.

The orders above mentioned are broad enough in their terms to authorize this suit. Houston & T. C. Ry. Co. v. Hook, 60 Tex. 403.

Plaintiff called Mrs. Kinser as a witness, and interrogated her at some length.

Error is assigned to the ruling of the court in excluding testimony sought to be elicited from her by her counsel on his cross-examination to the effect that deceased gave her the certificate of deposit; also, she and deceased were engaged to be married.

Counsel for plaintiff, in his examination of Mrs. Kinser, did not question her in any manner concerning the $2,500 certificate of deposit or with reference to any marriage engagement between the witness and deceased. The fact that plaintiff called the witness and examined her concerning other matters did not relieve her of the restrictive operation of article 3716, R.S. She not having been called to testify concerning those matters, she was incompetent to testify in regard thereto under the language of the statute. Himes v. Himes (Tex.Civ.App.) 55 S.W.(2d) 181; Huggins v. Myers (Tex.Civ.App.) 30 S.W.(2d) 565; Salvini v. Salvini (Tex.Civ.App.) 2 S.W. (2d) 963.

Nor was she competent to so testify in behalf of her codefendant. James v. James, 81 Tex. 373, 16 S.W. 1087.

Another reason why the refusal to permit her to testify she was engaged to deceased, presents no error, is that the record does not show she would have so testified. Joy v. Craig (Tex.Civ.App.) 94 S.W.(2d) 524; Olivas v. El Paso E. Co. (Tex.Civ.App.) 54 S.W.(2d) 154; Knight v. Texas & N. O. Ry. Co. (Tex. Civ.App.) 26 S.W.(2d) 672.

The Bank complains of the refusal of the court to set off against the plaintiff's demand the $500 paid upon the check mentioned instead of establishing it as a claim against the estate and ordering it paid in due course of administration as a fourth class claim. In this connection cases are cited which hold that where there are mutual debts between two persons, and one dies, the debt due by the decedent, matured at his death, may be set off in a suit by the administrator of the decedent. Black v. Gray (Tex.Com.App.) 280 S.W. 573; Traders' Nat. Bank v. Cresson, 75 Tex 298, 12 S.W. 819; Smalley v. Trammel's Adm'r, 11 Tex. 10.

These cases have no application, because the Bank's claim arising out of its payment of the $500 check arose after the death of Struthers, and for that reason is not a proper set-off against the plaintiff's demand. Patton v. Ashworth (Tex.Civ.App.) 67 S.W. (2d) 331, and cases there...