W. T. Carter & Bro. v. Bendy

• Decision Date: 27 March 1923
• Docket Number: (No. 786.)
• Parties: W. T. CARTER & BRO. et al. v. BENDY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

251 S.W. 265

W. T. CARTER & BRO. et al. v. BENDY.^*

(No. 786.)

Court of Civil Appeals of Texas. Beaumont.

March 27, 1923.

Rehearing Denied April 25, 1923.

Appeal from District Court, Tyler County; D. F. Singleton, Judge.

Trespass to try title by H. W. Bendy, individually and as administrator, against W. T. Carter & Bro. and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, and Coleman & Lowe and J. E. Wheat, all of Woodville, for appellants.

E. R. Campbell and L. B. Moody, both of Houston, and J. A. Mooney, of Woodville, for appellee.

WALKER, J.

This was a suit in trespass to try title by appellee, individually and as an administrator of the estate of his deceased father, H. W. Bendy, against appellants, involving about 1,163 acres of land, a part of the Ann Fisher league in Tyler county, Tex. Appellee's petition was in the ordinary form of trespass to try title. Appellants answered by plea in abatement, based upon the proposition that, after the long lapse of time since the opening of administration on the estate of H. W. Bendy, it must be presumed, as a matter of law, that administration had been closed, and by general demurrer, general denial, plea of not guilty, and cross-action against their warrantors.

H. W. Bendy, Sr., was the common source of title. Appellee proved heirship and, also, that he had been appointed administrator of the estate of H. W. Bendy, deceased. Appellants claimed under a regular chain of title from and under H. W. Bendy, through a sheriff's deed from H. W. Bendy to W. B. Cline, and by a chain of about 18 warranty deeds emanating from the heirs of W. B. Cline, all duly recorded. In proving common source, appellee offered in evidence the sheriff's deed, conveying H. W. Bendy's interest in the land in controversy to W. B. Cline. In proving their title, appellants offered this deed in evidence, and it was received over appellee's objections, but, at the conclusion of the evidence, it was stricken from the record on appellee's motion. On trial to the court without a jury, judgment was rendered in favor of appellee as administrator of the estate of H. W. Bendy, deceased, and this appeal lies from that judgment.

There is in the record what purports to be the trial court's conclusions of law and fact, but as they were filed after the expiration of time allowed by law for the filing of such conclusions, they cannot be considered by us for any purpose. They form no part of the record on this appeal, and, in making our statement of the case, no weight at all has been given to the statements of fact in such conclusions. Averill v. Wierhauser (Tex. Civ. App.) 175 S. W. 794; I. & G. N. R. Co. v. Mudd (Tex. Civ. App.) 179 S. W. 686; T. & N. O. R. Co. v. Turner (Tex. Civ. App.) 193 S. W. 1087; Bliss v. San Antonio School Board (Tex. Civ. App.) 173 S. W. 1176.

The trial court did not err in refusing to sustain appellants' plea in abatement. On this issue, we take the following statement from their brief:

"Administration was taken out on the estate of H. W. Bendy, Sr., in the probate court of Jasper county, in the year 1884, and Clara A. Bendy was appointed administratrix. In 1886 Clara A. Bendy resigned, and H. W. Bendy, Jr., appellee herein, was appointed administrator. On November 22, 1889, order was entered by the probate court of Jasper county, upon application of Clara A. Bendy and certain heirs of H. W. Bendy, for partition and division of all of the property of said estate. Among other things said decree recited:

(1) Application for the partition.

(2) The names of all those entitled to the property.

(3) Due and legal service.

(4) That two of the heirs are minors, and the appointment of a guardian ad litem.

(5) `That more than twelve months have elapsed between the date of the original grant to Harry W. Bendy of letters of administration upon the estate of said decedent and the date of the filing of said application, to wit, September 13, 1889, and that no necessity exists for longer continuance of said administration upon said estate.'

(6) The appointment of commissioners of partition, with direction as to the division of said estate.

(7) That H. W. Bendy, the administrator, is ordered to make and file a full and complete exhibit and account of the condition of said estate, and certain property is ordered withheld from partition to be applied to the `payment, liquidation, and discharge of the debts and expenses of administration of said estate.'

"On January 30, 1890, the commissioners of partition filed their report, and by order entered of that date the probate court approved and confirmed the same.

"Over objections of appellants' counsel, appellee offered in evidence the following certificate:

"`State of Texas, County of Jasper.

"`This is to certify that letters of administration was granted in this county in the estate of H. W. Bendy, Sr., deceased, and that H. W. Bendy of ____, Texas, was appointed by the court administrator of said estate, and that the administration has never been closed or the administrator discharged, as disclosed by the probate records of Jasper County.

"`Given under my hand and seal of office at Jasper, Jasper County, Texas, on this the 29th day of August, 1916.

                                           "C. C. Brown
                    "`County Judge in and for Jasper County
                       Texas.'
                

"Over objections of appellants' counsel appellee, H. W. Bendy, testified: `I do not think I ever filed with the probate court of Jasper county any final report as administrator of that estate. I have not filed with the court any resignation as administrator. I have never received any notice of discharge or removal as administrator, nor any citation to show cause why I should not be discharged.'"

The order of partition referred to in the statement just made recites that certain lands should be reserved from said partition, "and the same, or the proceeds arising from the sale thereof, applied to the payment, liquidation, and discharge of the debts and expenses of administration of said estate."

The burden rested on appellants to prove the facts alleged in their plea, that is, that the administration on the estate of H. W. Bendy had been closed. Hart v. Kanady, 33 Tex. 720; Chambers v. Ker, 6 Tex. Civ. App. 373, 24 S. W. 1118. A presumption that the administration had been closed did not arise from the lapse of time. Branch v. Hanrick, 70 Tex. 733, 8 S. W. 539; Thomas v. Hawpe, 35 Tex. Civ. App. 311, 80 S. W. 131. In construing article 3249, Complete Texas Statutes:

"Where letters testamentary or of administration shall have once been granted, any person interested in the administration may proceed, after any lapse of time, to compel a settlement of the estate when it does not appear from the record that the administration thereof has been closed."

— it has been held that an administration is not closed until the administrator has been discharged. Blackwell v. Blackwell, 86 Tex. 207, 24 S. W. 389; McLain v. Pate, 58 Tex. Civ. App. 500, 124 S. W. 718. While in their statement under this proposition appellants say they objected to the admission of certain testimony, they have presented no proposition here urging that point, so the testimony is in the record for what it is worth, and was properly considered by the court in reaching his conclusions. We do not agree with appellants that article 3249 was only "for the benefit of persons interested in the administration and against the right of the administrator to claim the benefit of any presumption to avoid an accounting or liability to those interested."

As we understand the construction given this article, a presumption that the administration has been closed never arises when the interest of the estate is involved, whether the issue be among those entitled to the estate or between it and third parties. McLain v. Pate, supra; Caddell v. Lufkin Land & Lumber Co. (Tex. Civ. App.) 234 S. W. 138. As we weigh the evidence offered by appellants, in our opinion they fail to sustain their plea.

In view of the fact that this case must be reversed for reasons hereinafter given, we do not discuss the issue as to whether the plea was properly verified. If the point is raised by exception on another trial, the affidavit should be amended.

The following is a copy of the sheriff's deed offered by appellants and excluded by the court on motion of appellee:

"The State of Texas, County of Tyler.

"Know all men by these presents: That I, sheriff of Tyler county, Texas, by virtue of an execution issued out of the district court of Tyler county, bearing date the 12th day of May, A. D. 1871, in the case of N. W. Burtis v. W. T. Hyde & H. W. Bendy No. 1043 of the docket of said court to me directed commanding me of the goods, chattels, lands, and tenements of the said W. T. Hyde & H. W. Bendy to make certain monies therein named to satisfy a judgment in favor of N. W. Burtis and against said Hyde and Bendy for $1,400.00 and $13.11 costs of court, and by virtue of said execution having seized and levied upon and advertised for sale according to law the following described tract of land, to wit, 1,163 acres of the Ann Fisher league situated in Tyler county and described in a deed from B. F. Ross, sheriff of Tyler county, recorded in Book G, page 219 to H. W. Bendy to which reference is made. (Here follows description of other lands.) Which execution was returned `not sold for want of sufficient time to advertise' June 26th, 1871. (Signed R. N. Dicken, Sheriff of Tyler County.)

"And by virtue of a writ of venditioni exponas issued by the clerk of the district court of Tyler county, on the 29th of July, A. D. 1871, commanding me to sell according to law the lands therein described, which had been previously levied upon and advertised for sale as required by law, I did proceed to offer for sale at the court-house door in the town of Woodville, on the first Tuesday being the ____...