Wheeler v. Duke

• Decision Date: 09 April 1902
• Citation: 67 S.W. 909
• Parties: WHEELER et al. v. DUKE et al.
• Court: Texas Court of Appeals

67 S.W. 909

WHEELER et al. v. DUKE et al.

Court of Civil Appeals of Texas.

April 9, 1902.

Appeal from district court, Shelby county; Tom C. Davis. Judge.

Proceedings by E. B. Wheeler and others against Warwick Duke and others to have a probate order entered nunc pro tunc. From a judgment of the district court affirming a judgment of the probate court refusing to enter the order, petitioners appeal. Affirmed.

I. O. B. Richardson, A. H. McKnight, J. M. Sanders, Drury Field, and John C. Walker, for appellants. Bryarly & Polley, for appellees.

PLEASANTS, J.

This proceeding was instituted by appellants on the 11th day of April, 1901, in the probate court of Shelby county; the object of the suit being to obtain an order of said court to enter nunc pro tunc an order made by said court at its October term, 1892, in the guardianship of the estate of the minor heirs of W. J. Duke, deceased. The appellants are the heirs at law and sureties upon the guardian's bond of M. W. Wheeler, deceased, who was the guardian of said minor heirs at the time the order sought to be entered nunc pro tunc is alleged to have been made; and the appellees are the former wards of the said guardian, and the owners of the estate administered by him. The probate court refused to have said order entered nunc pro tunc, and upon an appeal to, and a trial de novo in, the district court, the same judgment was rendered. The petition alleges that M. W. Wheeler qualified as guardian of the estate of the minor heirs of W. J. Duke, deceased, on the ____ day of August, 1892, and continued to act as such until his death, which occurred on the 8th day of January, 1897, at which time said guardianship was still pending, and has never been closed; that on the ____ day of October, 1892, said guardian made application in writing to the probate court of Shelby county, in which said guardianship was pending, showing that the income of the estate of said minors was insufficient for their maintenance and education, and asking that he be allowed to expend a portion of the corpus of said estate for said purpose; that said application was granted in open court at the October term, 1892, and an order was made by the court allowing and authorizing said guardian to use a sufficient amount of the body of said estate to maintain and educate said minors, which order the court directed the clerk to enter upon the minutes of the court; that said guardian caused the order so made to be put in writing, and handed same to the clerk to be placed upon the minutes of the court, but, for some cause not known to petitioners, the clerk failed to enter said order in the minutes; that said guardian fully believed that said order had been duly and properly entered by the clerk, and in the administration of said estate expended about $800 of the corpus of same in the maintenance and support of said minors, believing that he was fully authorized so to do under the order of said court; that said guardian never became aware during his lifetime of the fact that said order had never been entered in the minutes of the court, and petitioners did not know that said order had never been entered until about the 6th day of April, 1901.

The following exhibits are attached to the petition, and are alleged to be copies of the application and order referred to in the petition:

Exhibit A. "In the Probate Court of Shelby County, Texas, October Term, 1892. To the Hon. W. T. Riggs, Judge of Said Court: Your petitioner, M. W. Wheeler, guardian of the estates of Warwick, Jack, Lula, Maud, Norma, Wheeler and Blanch Duke, minors, with respect shows to your honor that the rents, revenues, and incomes of said estates are wholly insufficient to support or educate said minors,—there being no income of said estates, except the interest on the claims in favor of said estates, which claims are all on parties who are insolvent, and nothing can be made out of them by law,—and prays that the court grant him, as guardian of said estates, an order allowing and empowering him to use a sufficient amount of the means of said estate to maintain and educate said minors. M. W. Wheeler, Guardian of Said Minors."

Exhibit B. "On this the ____ day of October, 1892, the application of M. W. Wheeler, guardian of the estates of Warwick Duke, Jack, Lula, Maud, Norma, Wheeler and Blanch Duke, minors, came up to be heard, and after the court seeing said application, and hearing the evidence in support thereof, and it appearing to the satisfaction of the court that the rents, revenues, and incomes of said estates are wholly insufficient to support or educate said minors, said application is hereby granted in all things, and that said guardian is hereby authorized and empowered to use a sufficient amount of the means of said estates to maintain and educate said minors."

Plaintiffs, by trial amendment filed in the district court, further alleged that when said application was presented to the probate court...