Wade v. Scott

• Decision Date: 20 March 1912
• Citation: 145 S.W. 675
• Parties: WADE et al. v. SCOTT et al.
• Court: Texas Court of Appeals

145 S.W. 675

WADE et al. v. SCOTT et al.

Court of Civil Appeals of Texas. Austin.

March 20, 1912.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Certiorari by Mary Wade and another against J. W. Scott and others to vacate orders of the county court in the settlement of the estate of W. H. Scott, deceased. From a judgment granting insufficient relief, plaintiffs appeal. Reversed and remanded in part, and affirmed in part.

M. G. Cox, of Cameron, for appellants. Moore & Moore, U. S. Hearrell, and Henderson, Kidd & Gillis, all of Cameron, for appellees.

RICE, J.

W. H. Scott, father of appellants, died in Milam county on the 10th of June, 1904, leaving a will, by which he bequeathed to each of his five children an undivided interest in and to all of his estate. At the time of his death, he owned no other property except a homestead in Cameron, estimated to contain 25 acres, more or less, upon which he, his wife, Rachel Scott, and Delphya Scott, an unmarried daughter, lived at the time of his death, using it as a homestead. In October next thereafter, the probate court appointed his son, J. W. Scott, administrator of said estate with the will annexed. He qualified as such with Monta J. Moore, A. J. McCord, and W. T. Massengale as his sureties, and he thereafter filed an inventory, showing that the above-described property was the only property of said estate. In April, 1906, he made application to and obtained an order from the said probate court to sell said real estate; such application was not accompanied, however, by an exhibit attached, showing a schedule of the debts and the condition of said estate. Said administrator, on the same date, reported a sale of one acre of said land to William Stolz, and on the same day the court confirmed such sale, notwithstanding said report had not been filed five days before the date of said order of approval, as required by statute. He subsequently sold to A. S. Epperson 27.5 acres of said land, and .7 of an acre to S. D. Lewis. There was no report of such sales, nor order confirming or ratifying the same, until October and December, 1908; nor was there any order of the court allowing and approving any claims against said estate until October, 1908, at which time the court entered an order approving the following claims, to wit: Claim in favor of Hefley & Co. for $82; two claims in favor of Miss Delphya Scott, one in the sum of $580, and the other in the sum of $100; claim in favor of Dr. Thos. A. Pope for the sum of $18; and the claim of the administrator, J. W. Scott, for $1,400. Deeds were made by said administrator to said purchasers for the respective tracts of land above mentioned, in accordance with the orders of the court above indicated.

On the 18th of June, 1910, Mary Wade and Eliza Castlio, two of the children of said W. H. Scott, deceased, on proper application, obtained from the district court of said county a writ of certiorari against J. W. Scott individually and as administrator and said sureties on his bond, as well as against Mrs. Rachel Scott, Delphya Scott, and said Stolz, Epperson, Lewis, and Bowers, purchasers of said property, and against said Pope and Hefley & Co., to remove the proceedings had in the county court of Milam county in said estate to said district court, for the purpose of revising the same and having said orders approving said claims and ordering said sales of real estate, as well as all other decrees of said court approving, ratifying, or confirming reports of such sales to said purchasers, annulled and declared void, on the ground that all of the claims against said estate so approved by said probate court were barred by the statute of limitations at the time of such approval, and that the land so sold was homestead, and not subject to sale for the payment of debts.

The case was tried before the court, without a jury, and judgment rendered, setting...