Waters v. King
| Decision Date | 29 December 1961 |
| Docket Number | No. 15934,15934 |
| Citation | 353 S.W.2d 326 |
| Parties | John F. WATERS, Appellant, v. Frank H. KING, Guardian Estate of Christine W. Dinkins, Appellee. |
| Court | Texas Court of Appeals |
Virgil R. Sanders, Fleming A. Waters, Dallas, for appellant.
W. H. Frank Barnes, Terrell, for appellee.
Invoking provisions of Art. 220(b) Probate Code, Vernon's Ann.Civ.St. appellant sought removal of Frank H. King as guardian of the person and estate of Christine W. Dinkins, and for appointment of himself as such guardian, asserting a superior right. He was a nephew of this ward. On hearing of the application to the Probate Court of Kaufman County and in turn to the District Court, the same was denied with this appeal from the latter judgment. A somewhat fuller statement of the antecedent facts other than those presented by appellant is now made.
On August 12, 1958 Frank H. King was appointed guardian of the person and estate of Christine W. Dinkins, a person of unsound mind, and duly qualified as such guardian. Frank H. King was related to the ward as a second cousin once removed. On July 27, 1959 Fleming A. Waters, brother of appellant and likewise a nephew of the ward, filed an application in the County Court of Kaufman County, seeking a removal of Frank H. King as such guardian and for appointment of himself, the claim being based on his prior right. Upon hearing, the petition was denied on August 7, 1959 with no appeal to the District Court for a trial de movo. On the 11th day of August 1959, appellant John F. Waters, brother of Fleming A. Waters filed the instant petition in the County Court of Kaufman County claiming a similar prior right as already stated, which petition was denied September 8, 1959; and on trial de novo in District Court being denied on September 23rd, 1960 with judgment to that effect entered on December 9, 1960. At request of appellant, the trial court filed findings of fact and conclusions of law, and no assignment of error is made by him to these findings of fact as to sufficiency of the evidence in support of same. Appellant in his motion and application made no contention that Frank H. King had violated his trust in any way and did not seek to remove him for cause.
These points of appeal urge court error (1) 'in refusing the application of John F. Waters to have the letters previously granted to Frank H. King as guardian of the person and estate of Christine W. Dinkins revoked and in refusing to order the County Court to issue letters to the applicant;' (2) 'in its holding that John F. Waters had waived his prior right to be appointed guardian of the person and estate of Christine W. Dinkins;' (3) 'in holding that John F. Waters is estopped to urge his prior right to be appointed guardian of the person and estate of Christine W. Dinkins.' Appellee has interposed appropriate counterpoints.
Art. 220(b) Probate Code provides in part: 'Where letters have been granted to one, and another whose right thereto is prior and who has not waived such right and is qualified, applies for letters, the letters previously granted shall be revoked and other letters shall be granted to the applicant.' While initially the right of appellee to this appointment was subordinate to that of appellant, such priority may be waived by conduct as well as by express declaration. Vannoy v. Gibson,...
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