Wolf's Estate v. Wolf

• Citation: 81 S.W. 90
• Parties: WOLF'S ESTATE et al. v. WOLF.
• Decision Date: 25 May 1904
• Court: Texas Court of Appeals

81 S.W. 90

WOLF'S ESTATE et al. v. WOLF.

Court of Civil Appeals of Texas.

May 25, 1904.

Appeal from District Court, Burnet County; Clarence Martin, Judge.

Proceedings between W. H. Wolf, as administrator of the estate of T. H. Wolf, and the estate of T. H. Wolf and certain creditors thereof. From a judgment of the district court allowing the administrator certain commissions on money as paid out, the creditors appeal. Affirmed.

T. E. Hammond and McLean & Spears, for appellants. W. H. Browning, for appellee.

KEY, J.

This is a probate proceeding, which originated in the county court, and was appealed to the district court. The matter in contest is the right of W. H. Wolf, as administrator of the estate of T. H. Wolf, to commissions claimed by him for receiving and paying out $9,772.95. The court below allowed him 10 per cent. commission, and certain creditors of the estate have appealed.

There is a conflict in the testimony, which shows that at the time of the death of T. H. Wolf a suit was pending against him and two other defendants upon two vendor's lien notes for $3,666.66 each. The lien referred to was expressly retained in the deed and notes, and the suit was for the debt and foreclosure of the lien. As between himself and the other defendants, T. H. Wolf had assumed the payment of the two notes. After the suit was filed, and before the death of T. H. Wolf, G. M. Smith purchased the notes in suit and the vendor's interest in the land and his cause of action in the suit referred to. The notes referred to were not presented to the administrator for allowance. After the death of T. H. Wolf, W. H. Wolf, as administrator of his estate, was made a party defendant to the foreclosure suit referred to, and thereafter made application to the probate court for an order to sell the land referred to, as well as other lands belonging to the estate, for the purpose of paying the two notes and other indebtedness, which application was granted, and the administrator directed to sell the lands at private sale for cash, or one-half cash and the balance on 12 months' time. In pursuance of that order, appellee, as administrator, sold all the lands referred to to L. C. Smith for $28,750. The sale was reported to and confirmed by the probate court. In closing up the matter, Smith surrendered to the administrator the two notes referred to and receipted bills of costs in the suit mentioned, which all together amounted to the sum of $9,772.95, and paid in cash the...