Thornhill v. Elskes
| Decision Date | 16 February 1967 |
| Docket Number | No. 4591,4591 |
| Citation | 412 S.W.2d 73 |
| Parties | Gene THORNHILL et al., Appellants, v. Mrs. Trupy ELSKES et al., Appellees. . Waco |
| Court | Texas Court of Appeals |
T. E. Kennerly, Houston, for appellants.
McLaughlin, Clark, Fisher, Gorin & McDonald, Waco, for appellees.
The is the third appeal in this cause. Plaintiffs' initial petition prayed for a declaratory judgment construing a will; for such orders as were proper or needed to effectuate the interpretation, including partition and distribution; and for attorneys' fees and general relief. The action was brought by Mrs. Elskes, an independent executrix and the testamentary trustee under the will, against her co-executors and other devisees. Our opinion in Thornhill v. Elskes, Tex.Civ.App., 381 S.W.2d 99, writ ref. n.r.e ., narrates the proceedings. The will was there construed and the trial court judgment was reversed for further proceedings not inconsistent with the opinion.
The amended petition in the case is the trial petition on this appeal. It is summarized in our opinion in the second appeal, Thornhill v. Elskes, Tex.Civ.App., 403 S.W.2d 449, no writ, in which we passed on venue issues under the amended pleading.
The case was then heard again on 'further proceedings not inconsistent with' the first opinion, and judgment resulted which recited that all debts and expenses of the estate had been paid except certain specified expenses and attorneys' fees. The representatives were directed by the judgment to pay these out of assets on hand and distribute the balance of the estate.
Findings of fact were filed, including findings that Mrs. Elskes, as independent executrix, employed attorneys and instituted the suit in good faith for the benefit of the estate, and that her co-executors also in good faith employed attorneys and defended the suit, likewise for the benefit of the estate. The reasonable value of the services of the attorneys was found, fixed and ordered paid.
Appellants are the defendants. They first assert that the trial court 'should have granted their summary judgment motion.' There is no motion for summary judgment in the record. Appellants made an oral motion which, if interpreted as a motion for instructed verdict, was waived by subsequent introduction of evidence. Travelers Ins. Co. v. Arnold, Tex.Civ.App., 378 S.W.2d 78, Syl. 1, no writ, and authorities cited.
As we understand their argument, appellants contend the probate court in which the will was probated had exclusive jurisdiction, and the district court had no jurisdiction to fix the reasonable amount of attorneys' fees and to direct payment of these and other expenses. They cite cases holding the district court jurisdiction is only appellate. The present case involves an independent administration. Mrs. Elskes and her co-executors are made independent of the prbate court as authorized by Probate Code Sec. 145, Vernon's Ann.Tex.Stats. The cases cited are those in which the representative was subject to the control of the probate court. The jurisdiction of the district court was properly invoked and exercised in the present case to fix and approve expenses and direct their payment in order to effect distribution of the assets of the estate after it had been determined that the distributive shares or devises were burdened by these expenses. Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, 985. The probate court had no jurisdiction over the subject matter of the present suit. Roy v. Whitaker, 92 Tex. 346, 355, 48 S.W. 892; Simkins Administration of Estates, 3d...
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