Willis v. Ferguson

• Decision Date: 01 January 1877
• Citation: Willis v. Ferguson, 46 Tex. 496 (Tex. 1877)
• Parties: P. J. WILLIS & BRO. v. GREEN FERGUSON.
• Court: Texas Supreme Court

46 Tex. 496

P. J. WILLIS & BRO.

v.GREEN FERGUSON.

Supreme Court of Texas.

1877.

APPEAL from Montgomery.Tried below before the Hon. James Masterson.

The opinion states the case.

N. H. & J. R. Davis, for appellees, on the conclusiveness of judgments, cited 10 Wall., 309, 581;Jackson v. De Lancey, 13 Johns., 537;Sutherland v. DeLeon, 1 Tex., 309;Mitchell v. Meuley, 32 Tex., 465;Withers v. Patterson, 27 Tex., 495.

L. A. Abercrombie, for appellee.--Was the appointment of an administrator, with the will annexed, void, for want of jurisdiction in the court to make it?--for nothing else will make it void.When the court has jurisdiction of the subject-matter, every presumption is in favor of its judgment.(Townsend v. Munger, 9 Tex., 309.)That the court had jurisdiction of the subject-matter, will not be denied, if the will is not independent in its character.If independent, it is quite as evident that it had jurisdiction of the subject-matter after the expiration of sixty days from the date of appointment, the executrix having refused or declined to render an inventory.The court not only had jurisdiction to remove her, but it was its peremptory duty to do so.In this respect, this case will be found to differ widely and materially from the case of Griffith v. Frazier, 8 Cranch, 9, and the cases therein put by Chief Justice Marshall.The appointment of an administrator over the estate of a man who is living, is void, because the court has no jurisdiction of the subject-matter.So in the case where an executor has been appointed, and is in the discharge of his duties; also, when the court is not clothed with power to remove him--when the law vests in him the title to the personalty, of which he cannot be divested by the court of ordinary, but only by a court of chancery.(Fisk v. Norvel, 9 Tex., 13.)

Here the court has express power to remove; the executrix has no title as such in any of the property.She is not only not executing the trust, but she positively refuses to do so.The distinction is so obvious, to elaborate it further would seem to be disrespectful to the court.

In Withers v. Patterson, 27 Tex., 492, referred to by appellants in their brief, it will be seen that the estate had been fully administered, and the court, therefore, considering that the record showed there was no estate to be administered, held that grant of letters was as much a nullity as to grant letters of administration on a living man's estate.

Now, then, here is a court of competent jurisdiction, and with express jurisdiction over the subject-matter, appointing an administrator over a large estate wholly unadministered, with the knowledge, consent, and at the request of the former executrix.He qualifies as such.The former executrix applies to the court in this administration to set aside to her the homestead, and repeatedly does other acts recognizing said administration, extending through many years.Creditors recognize him as such by presenting their claims to him for allowance, and suing him in the capacity of administrator when he rejects them, and by appearing in the Probate Court, and there litigating with him as such administrator.The court orders him to sell lands; approves or disapproves the sales when made.Purchasers in good faith pay him their money, which goes into the estate.And now the court, more than five years after his appointment as administrator, is called upon by creditors who, themselves, have recognized his appointment, and who, as creditors of said estate, have possessed themselves of almost the entire valuable estate of Lewis, to declare that appointment, and all subsequent proceedings thereunder, absolutely null and void, and to eject appellee from this small tract, his homestead, purchased in good faith under order of the court, in an administration then, and for many years after, universally recognized as legal and proper.And why?Because, it is said, it does not appear from the minutes of the court that a formal entry was made removing the executrix, or that she had tendered her formal, written resignation, and that it was accepted.

Mere irregularities in the proceedings had in granting letters or orders of sale, or omissions that do not appear to be supplied, will not vitiate the grant of letters or orders of sale, if the court had jurisdiction of the subject-matter.(Giddings v. Steele, 28 Tex., 750;Baker v. Coe, 20 Tex., 429;Dancy v. Stricklinge, 15 Tex., 557.)“The validity, or the necessity of the proceedings in the court of probate, for the appointment of an administrator, cannot be drawn in question collaterally by a debtor of a succession.”(Mix v. Johnson, 9 La. An., 113;Grant v. McKinney, 36 Tex., 62.)The same rule prevails when the “administrator's authority is drawn in question in a collateral action for the purpose of invalidating the title of a purchaser at the administrator's sale.Where sales have been thus made and confirmed by the judgment of a court of competent jurisdiction, it is well settled that the judgment, unless impeached for fraud, cannot be drawn in question in any collateral action or proceeding.(Burdett v. Silsbee, 15 Tex., 617;McPherson v. Cunliff, 11 Serg. & Rawles, 422;Thompson v. Tolmie, 2 Peters, 157;Tucker v. Harris, 13 Ga., 1;15 Tex., 557;Poor v. Boyce, 12 Tex., 450;Hurt v. Horton, 12 Tex., 285.)

ROBERTS, CHIEF JUSTICE.

This was an action of trespass to try title to three hundred acres of land-- the Peel tract--brought by appellants against appellee on the 23d of March, 1873.The petition was in ordinary form, and the appellee filed a plea of not guilty.Under the issue thus formed, the title relied on by each party is presented in the evidence offered upon the trial.

The court, in the charge, held the plaintiffs' evidence of title insufficient, excluded from the jury the defendant's evidence of title, and, upon the admitted fact of defendant's possession of the land when the suit was brought, directed the jury to find a verdict for the defendant.Plaintiffs appealed, and assigned numerous errors, which point out all of the objections which could be raised to the rulings and charge of the court.The defendant excepted to the ruling of the court, in excluding the evidence of his title, and assigned errors, in order to have the validity of his title passed upon by this court.

The evidence before the jury, relating to the plaintiffs' title, was, a judgment, execution, and sale, and sheriff's deed to the land, and other facts herein set forth.The said judgment was rendered by the District Court of Montgomery county, on the 10th of September, 1872, wherein plaintiffs recovered a judgment, for twenty-eight thousand dollars, against Susan M. Lewis, as ““independent” executrix of the will of John M. Lewis, sr., to be collected by execution, to be levied upon the effects in her hands, being the community property of herself and her deceased husband, the testator, John M. Lewis, sr.In said judgment, it was decreed that she was still said executrix, in control of said property, and that John M. Lewis, jr., who was a party to the suit, had no right to control the same, by having been previously appointed administrator of said estate, with the will annexed; that his acts as such were null and void, and that he be enjoined from interfering with the same.The execution, levy, sale, and sheriff's deed to plaintiffs were all in pursuance of said judgment, and completed before the institution of this suit for the land.It was also proved that John M. Lewis, sr., died in 1862, leaving a will, in which he bequeathed and devised all of his property to his wife, Susan M. Lewis, with the power of disposition during her lifetime, and made her sole and exclusive executrix of it.In the same year she applied for probate of the will, had it probated, and letters of executorship were issued to her upon her taking the...