3 S.W.2d 864 | Tex. App. | 1927
Lead Opinion
The First National Bank of Waco, one of the appellees herein, sued Mrs. Ray W. Goldberg, Sophia Goldberg, and Ida Mae Bornstein (nee Goldberg), and her husband, Stanley L. Bornstein, on a promissory note for the principal sum of $1,215, with interest and attorney's fees alleged to have accrued thereon. A writ of garnishment was sued out in said cause against appellee Berkman individually and as independent executor of the estate of Mary G. Goldberg Thomas, deceased, and served on him on the 12th day of September, 1925. Said writ commanded said garnishee to appear on the 5th day of October, 1925, the same being the first day of the ensuing term of said court, and answer what, if anything, he was indebted to said several defendants both in his individual capacity and as executor of said estate. Since the indebtedness of the garnishee to Mrs. Bornstein is the only issue involved in this appeal, further reference to the other parties defendant in the original suit may be omitted. *866
The garnishee filed his answer in said cause on October 6, 1925, appearance day of said term. In said answer he denied being individually indebted to Mrs. Bornstein in any sum whatever. He further answered that Mrs. Bornstein, on September 8, 1925, in a certain cause entitled Ida Mae Goldberg et al. v. J. Berkman et al., pending in said court, and numbered 27441 on the docket thereof, recovered a judgment against him, the said garnishee, as independent executor of the estate of Mary G. Goldberg Thomas, deceased, in the sum of $1,000, and made the judgment in said cause a part of his said answer. He further set out in said answer that motion for new trial in said cause had been filed and overruled on October 3, 1925, and that notice of appeal had been given by Morris Thomas, one of the parties to said suit. The original petition in said cause No. 27441 shows that the same was a suit brought by Mrs. Bornstein and husband and other legatees under the will of Mrs. Thomas, against said Berkman as independent executor of said will and the remaining legatees thereunder, and against Morris Thomas, the surviving husband of said testatrix, for partition and distribution of her estate. The answer of the defendant Berkman in said cause made the will of Mrs. Thomas, a copy of which was attached thereto, a part thereof. The will of said Mrs. Thomas was made by her while she was Mary G. Goldberg and before her marriage to said Thomas. By the terms thereof she bequeathed to Mrs. Bornstein and thirteen others specific legacies amounting in the aggregate to $8,000. She bequeathed the residue of her estate to the Congregation Agudath Jacob, a religions corporation. Said answer showed that the entire estate which came into the hands of said executor consisted of seven promissory notes, the principal of which aggregated the sum of $8,687.50. Said answer further showed that said executor had collected two of said notes and various sums of accrued interest on all of the same, and that, after paying all costs and expense of administration, he had on hand in cash the sum of $2,465.92 and five of said notes still uncollected, the principal of which aggregated $6,687.50. Said executor in said answer further stated that he was willing that the estate remaining in his hands be partitioned among the parties entitled thereto, and asked the court to determine the several parties entitled to said funds and to order the same distributed according to their respective interests. He further stated that it was impossible to partition said notes in kind, and recommended that they be sold and the proceeds thereof partitioned. He further alleged that the defendant Morris Thomas was claiming some interest in the property in his hands, and asked that such claim be canceled. He further asked that his account as executor be approved, that he be allowed certain additional compensation, and that he be discharged from his trust. The pleadings of said Thomas are not found in the record, and the nature of his claim is not specifically stated, though the assertion of a claim on his part was also alleged by the plaintiffs in said suit.
The judgment of the court in said cause No. 27441, made a part of the garnishee's answer in this cause, recited that the several parties to said suit appeared in person or by attorney, and that said Morris Thomas, of the state of New York, by his duly authorized attorney, had entered an appearance and filed an answer therein and pleaded to the jurisdiction of the court, and that said plea was considered by the court and overruled. Said judgment further recited that the court, after hearing the evidence, found that said Morris Thomas had no interest in any of the property or funds in the hands of said executor, and divested him of all right, title, and interest therein and vested the same in said executor in his representative capacity, and canceled all claims asserted by said Thomas in or to any of said property. The court also found that the several parties to said suit were entitled to receive out of the proceeds of said property in the hands of the executor the respective amounts bequeathed to them by the will of the deceased Mrs. Thomas, and awarded to each of them, respectively, a judgment against the executor therefor. The court further appointed the executor a receiver of said notes, and authorized him as such to sell the same and report his action to the court. The court also, in said judgment expressly approved the acts of the executor. It may be further stated in this connection that said executor, acting as receiver under said order of the court, filed his report of the sale of said notes and the bill of costs incurred by him in making such sale, and the same were on the 3d day of October, 1925, duly approved by the court, and said receiver discharged. Said Morris Thomas, defendant in said cause No. 27441, filed his original motion for new trial therein on September 30, 1925, and his amended motion for new trial therein on October 3, 1925, which motion was overruled and notice of appeal given on said day, the same being the last day of that term of the court. Said Thomas in due time perfected his appeal by cost bond, and the judgment of the trial court in said cause was affirmed by this court on the 8th day of April, 1926.
Mrs. Bornstein, by written assignment dated September 1, 1925, but not delivered until after the service of said writ of garnishment, assigned $250 of the legacy bequeathed to her by the will of Mrs. Thomas, to appellant James P. Alexander. Thereafter on the 23d day of March, 1926, she executed another instrument, assigning to appellant Alexander *867 the sum of $350 to be paid out of the judgment recovered by her against said executor in said cause No. 27441. It is conceded that the sum of $250 theretofore assigned to appellant Alexander is included in this latter assignment. Mrs. Bornstein thereafter, on the 27th day of March, 1926, assigned the remaining $650 of said judgment to appellant T. E. Haney. On the 1st day of May, 1926, appellants Alexander and Haney filed their plea of intervention in this cause, in which they set up their respective assignments as aforesaid, alleged that the proceeds of said judgment were not subject to garnishment, and prayed for recovery of the funds awarded to Mrs. Bornstein by the judgment in said cause No. 27441 and still remaining in the hands of said executor, the garnishee herein.
The garnishee on the 8th day of June, 1926, filed an amended answer in this cause, in which he alleged that the judgment of the trial court in said cause No. 27441 had been duly affirmed by the Court of Civil Appeals (
Appellee bank on June 11, 1926, recovered judgment against Mrs. Bornstein for the sum of $1,473.13. This cause came on for trial in said court on the 5th day of August, 1927. The court having heard the evidence, rendered judgment in favor of appellee bank against the garnishee J. Berkman as independent executor of the estate of Mrs. Thomas, deceased, in the sum of $750, and in favor of appellant James P. Alexander against said garnishee for the further sum of $250. Appellant Haney was denied any recovery. Said judgment is here presented for review.
In order for a fund or liability to be subject to garnishment, the amount thereof must be capable of ascertainment at least at the time of the filing of the garnishee's answer. Burke v. Hance,
"The demand being uncertain, is not made certain until the amount is fixed by a final judgment of the court — that is to say, a judgment not merely final in the sense that an appeal lies therefrom, but a judgment final in the sense that it has reached that stage in judicial procedure when it can neither be set aside nor reversed upon appeal. In the case of the Texas Trunk Railway Co. v. Jackson,
We therefore hold that neither said legacy to Mrs. Bornstein nor the recovery in her favor in which it was merged was subject to the bank's writ at the time the garnishee filed his original answer herein. See, also, Burke v. Hance, supra; Kreisle v. Campbell (Tex.Civ.App.)
Appellee bank contends that the rule just announced does not apply in this case because the appeal from the judgment in said cause No. 27441 was perfected and prosecuted by Morris Thomas alone. We do not think such contention sound. The judgment denying any recovery whatever to Morris Thomas was a judgment in favor of Mrs. Bornstein to the extent that it determined that the funds out of which her recovery was to be satisfied should not be diminished by reason of the claims asserted by him, and in favor of the executor, absolving him from any liability to said Thomas with reference to such funds. Our Supreme Court in the case of Missouri, K. T. Ry. Co. v. Enos,
"But where the rights of one party are dependent in any manner upon those of another, it [the appellate court] will treat the judgment as an entirety, and, where a reversal is required as to one, it will reverse the judgment as a whole. * * * That a judgment against two or more parties which is appealed from by one may be reversed as to the one and affirmed as to the others, or may be reversed as a whole, according to the manifest justice of the case, we think the cases cited sufficiently show."
See, also, Hamilton v. Prescott,
The appeal of Morris Thomas conferred jurisdiction upon the Court of Civil Appeals to reverse the judgment of the trial court and to remand the cause for a retrial as between all the parties thereto, and deprived the judgment so appealed from of the finality required to make the defendant therein subject to garnishment on account of the recoveries there awarded against him.
Appellee further contends that, because this suit was not tried until the judgment in said cause No. 27441 became final by reason of affirmance on appeal, and because such affirmance was set up by the garnishee in an amended answer, the recovery awarded it was proper and ought to be affirmed. The writ of garnishment served on the garnishee commanded him to appear and answer on the first day of the ensuing term of the court and to disclose in said answer what, if anything, he was then indebted to Mrs. Bornstein and what, if anything, he was so indebted at the time same was served. The statute (article 4087, Rev.St. 1925) required him to file such answer on or before the appearance day of said term of court. He complied with the command of the writ and the requirement of the statute. The service of the writ impounded any sum or sums owed by the garnishee to Mrs. Bornstein which were subject to garnishment either at the time of the service thereof or at the time of the filing of his answer. Gause v. Cone,
The judgment of the trial court, so far as it awards a recovery against the garnishee in favor of the bank, is here reversed, and judgment is rendered that the bank take nothing herein, and that the appellant Alexander recover of the garnishee the sum of $350, and that appellant Haney recover of the garnishee the sum of $650, and that both the appellants recover their costs.
The case of Waples-Platter Grocer Co. v. T. P. Railway Co.,
"(1) Whether, pending said appeal therefrom, the said judgment in favor of Downtain *870 was subject to appellant's said writs of garnishment.
"(2) If not, whether the claim of the judgment debtor Downtain against the garnishee, Texas Pacific Railway Company, as stated and shown in the agreed statement of facts, is a demand of such character as to be subject to garnishment even before the judgment which determined his rights thereon."
The Supreme Court answered both said questions in the negative, and incidentally approved a like holding of the Court of Civil Appeals in the case of Kreisle v. Campbell, 32 S.W. 581, 582. The effect of such holdings was to award the fund in controversy to the assignees instead of the garnishing creditor. Since that case involved a garnishment in the same court in which the judgment was rendered, and since the issues in that case were determined after the judgment garnished had become final, and apparently on an amended answer filed by the garnishee, appellee's contention that this case is affected by the fact that the same situation in these respects exists in this case is without merit. It therefore appears that, if this case is distinguished therefrom, it must be on the ground that the cause of action on which the judgment in favor of Mrs. Bornstein was rendered was subject to garnishment before the institution of her suit for partition and distribution, in which suit said judgment was rendered. Mrs. Thomas left a will, which was duly probated on the 26th day of May, 1924. Said will directed that all of her debts be paid, and then bequeathed general moneyed legacies to Mrs. Bornstein and eleven others, amounting in the aggregate to $8,000, and the remainder, if any, of her estate, to a religious corporation. Berkman was named in said will as independent executor and authorized to sell all the property belonging to the estate. He accepted the appointment, took charge of said estate, and proceeded to administer the same.
Appellee stresses the fact that Berkman was an independent executor and that the estate of Mrs. Thomas was not being administered in the probate court. An independent executor is not a law unto himself. His "independence" consists largely in his right in the administration of such estate to do without an order of the county court every act which he could do with such an order, were he acting under the control of such court. Dwyer v. Kalteyer,
Appellee insists that the legacy due Mrs. Bornstein was a debt against the estate of Mrs. Thomas, and that it was a liquidated claim. A legacy is a gift by the testator and not a debt against the estate. 40 Cyc. 994, Legacies are divided by law into several classes, and priority of payment prescribed. Legacies cannot be paid until all the debts and expenses of administration are satisfied. They are then, if there are funds in the hands of the executor properly applicable to their payment, payable in their proper order of priority, and, if there be not sufficient funds to discharge all the legacies of the same class, such legacies must be paid pro rata 2 Page on Wills, p. 2313, part of section 1390. In this case there were eleven other legacies of the same class as Mrs. Bornstein's, and the same, with the residuary legacy, disposed of the entire estate. There is therefore in this case a direct analogy between the legacy payable to Mrs. Bornstein and others in the same class and the distributive share of an heir at law in the estate of an intestate. Under the provisions of our probate law, after the expiration of a year from the granting of letters testamentary, the executor or any person interested in the estate may apply for an order of partition and distribution. Upon the hearing of such application, if the estate consists of cash or debts due the estate, the court shall fix the amount due each distributee and order payment thereof. R.S. 1925, articles 3598, 3601, 3606, and 3607. While Berkman, the independent executor in this case, had authority to collect the debts due the estate or to convert the same into money by a sale thereof if he could do so, and to voluntarily distribute the proceeds among the legatees in full payment or pro rata, as the funds available might permit, he had not done so. The reason therefor was probably in part at least the claim of Thomas, who is shown by the briefs and oral argument of counsel for both parties to have been the surviving husband of Mrs. Thomas.
While the record proper does not show the *871
nature of his claim, the briefs of the respective parties and argument of counsel show that he married the testatrix in the state of New York, that they lived together in that state from the time of their marriage until her death, and that he claimed that the laws of that state controlled the disposition of her personal estate, and that he was entitled to a material portion thereof notwithstanding the terms of her will. Until the claim asserted by him was adjudicated in some proceeding, binding alike on him and on the several legatees under Mrs. Thomas' will, the executor Berkman, could not act in the matter of distributing the estate except at his peril, which he certainly was not required to do. His failure to collect the notes due the estate or convert the same into money, they being incapable of partition in kind, and to distribute the proceeds, under such circumstances, did not render him personally liable for the payment of Mrs. Bornstein's legacy or authorize her to maintain a suit at law against him for the recovery thereof either individually or as executor of said estate. Mrs. Bornstein was not required, however, to await action by the executor in the matter of converting said notes into money and thereby ascertaining the amount to be distributed and its sufficiency to pay her legacy in whole or in part. Neither was she required to await action on his part in the matter of having the validity of the claim of the surviving husband adjudicated. She had a right at the expiration of one year from the grant of letters to institute an equitable action for partition and distribution in the district court. Quintana v. Giraud (Tex.Civ.App.)
When an estate is being administered in the probate court, in the absence of express statutory authority, neither a legacy nor a distributive share is subject to garnishment prior to an order of distribution or settlement of the estate. The reasons given for such rule are that, until an order of distribution is made, the distributee or legatee has no present right to or interest in the property in the hands of the executor or administrator; it is uncertain and contingent whether he shall receive anything, and, if so, what amount, and, in addition thereto, the executor or administrator prior to such order is not a debtor of the legatee or distributee. 28 C.J. p. 185, § 224. After an order of distribution or an order for payment of legacies has been made, a legacy or distributive share may be reached by garnishment. The reasons given for such rule are that, by the decree, each share is finally and definitely ascertained, the executor or administrator becomes the personal debtor of the distributee or legatee, and a cause of action therefor arises in favor of the distributee or legatee against the administrator or executor, and there are no grounds for witholding the money thus judicially determined to be due. Id. pp. 186. 187, § 225.
The same rules apply, in effect, to the administration of an estate by an independent executor under our statutes. He can collect debts and sell securities. Not until he has done so is the amount of available cash actually determined. Notwithstanding the amount of the fund to be applied in such distribution may be so determined, he cannot safely distribute the same until the parties to participate in such distribution can be ascertained with reasonable certainty. He is not required to decide conflicting claims at his peril, but has a right to have such claims adjudicated in an action to which all claimants are made parties, so that all of them may be bound by such adjudication He is not required, and should not be required to litigate such issues with a garnishing creditor in one suit, and with the legatees and other claimants of the funds in his hands in another suit. He has a right to have all parties interested bound by a common finding of fact. Skipwith v. Hurt,
"An executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations. It would tend to distract and embarrass these officers if — in addition to the ordinary duties which the law imposes, of themselves often multiplied, arduous, and responsible — they were drawn into conflicts created by the interposition of creditors or legatees, and compelled to withhold payment of legacies without suit, to suspend indefinitely the settlement of estates, to attend perhaps to numerous rival attachments, to answer interrogatories on oath, and to be put to trouble and expense for the benefit of third persons, no way connected with the estate, nor within the duties of their trust."
Such rule applies with equal force to independent executors as to executors and administrators acting under the control of the probate court.
We adhere to our original holding that neither the legacy of Mrs. Bornstein nor the recovery in her favor, in which it was merged just before the service of appellee's writ of garnishment herein, was subject thereto at the time of such service.
Appellee's motion for rehearing is overruled.
Dissenting Opinion
Not being able to agree with my associates, I file the following dissenting opinion:
The legal question here involved is, Was the legacy in question subject to garnishment at the time the writ was served, or at the time the original answer in garnishment was filed? The will by which Mrs. Bornstein was bequeathed $1,000 provided, in effect, that the county court should have no jurisdiction except to probate the will, and the return and approval of an inventory and appraisement, and that no bond should be required of the executor. The will was duly probated, the inventory returned, and the independent executor duly qualified. The county court had no further jurisdiction over the estate. The trial court correctly so recognized in providing for the collection of the district court judgment by the issuance of process, rather than directing it certified to the county court for payment, etc. More than a year after the will was probated, Mrs. Bornstein brought suit against the independent executor for distribution. If this suit had never been filed, this $1,000 legacy, it is thought, under the facts of this case, the will having been duly probated, the independent executor duly qualified, there being no debts against the estate, and it appearing affirmatively the assets were sufficient to pay all legacies in full, would surely have been subject to garnishment. It was not a claim for damages based upon a tort, but was a liquidated demand fixed and determined by the will — a written instrument which had been duly probated. It is thought the case of Waples-Platter Grocer Co. v. Texas P. Railway Co.,
"(1) Whether, pending said appeal therefrom, the said judgment in favor of Downtain was subject to * * * garnishment? (2) If not, whether the claim of the judgment debtor, Downtain, against the garnishee, the Texas Pacific Railway Company, as stated and shown in the agreed statement of facts, is a demand of such character as to be subject to garnishment, even before the judgment which determined his rights thereon?"
In other words, was Downtain's judgment against the railroad subject to garnishment while appeal was pending therefrom? And, if not, then was Downtain's claim against the railroad subject to garnishment before it was reduced to judgment? The court first proceeded to determine the"nature" of Downtain's claim against the railway company, and found that his "cause of action was for unliquidated damages for breach of a contract," and said further:
"When the damages are unliquidated and in their nature uncertain, the demand is not subject to garnishment."
So the court answered the second question in the negative, and said further:
"It results from the foregoing conclusion that a like answer must be given to the first question."
In other words, the court held that, since Downtain's claim was not subject to garnishment because it was for unliquidated damages, the same was not subject to garnishment after being reduced to judgment while appeal therefrom was pending. The clear inference is that, if his claim
was subject to garnishment, then after same was merged into a judgment it would still be so subject, although an appeal therefrom was pending. *873
There was no controversy between any of the parties to the suit for distribution, unless it can be said Morris Thomas was claiming a part of the estate. He filed no pleading, except a plea to the jurisdiction of the court, which was overruled, so we cannot know that he was claiming any interest in the estate in Texas; but suppose he was, and suppose a recovery by him would have reduced the amount of Mrs. Bornstein's legacy, would that render the reduced amount of her legacy, whatever it might be, immune from garnishment? It is thought not. If the claim of Thomas in the suit did render the amount of her claim uncertain, it did not change the nature of her claim. It did not change it into a claim resting in tort for unliquidated damages. It is not the uncertainty of a claim that determines whether or not it is subject to garnishment, but it is the uncertainty of a claim by reason of the nature of such claim. Suppose the suit for distribution had not been filed, and the garnishee had answered setting out the $1,000 legacy to Mrs. Bornstein, but alleging Thomas was claiming an interest in same, and he had been made a party to this garnishment suit and claimed a part or all of it, thereby rendering the amount of her claim uncertain, would her claim, whatever it might be, cease to be subject to garnishment? The garnishee can require the claimants of a fund to interplead and to settle their rights to the fund in his hands. Foy v. East Dallas Bank (Tex.Civ.App.)
The question here involved should be determined not from what the facts might have been, but from what they actually were On September 8, 1925, the suit for distribution of the estate according to the provisions of the will was tried, and on said date judgment entered, adjudging that Thomas had no interest in said estate; that the assets of the estate consisted of $2,465.92 cash on hand, vendor lien notes for $6,000, and secured personal notes for $687.50, making a total of $9,153.42, all, as set out in the report of the independent executor, situated in Waco, Tex. The court directed the distribution of said estate, and to that end appointed the independent executor as receiver to sell said notes and report to the present term of the court. The court further entered judgment awarding to each of the legatees a recovery for the amount as provided by said will to such legatee, awarding to Mrs. Bornstein and husband a judgment for $1,000 against the independent executor, and directing execution to issue against him as such executor for same. Said independent executor as receiver, having converted said notes into cash, did report on October 3, 1925, and, after being allowed $58.40 expense in selling said notes, was on the same date discharged by the court as such receiver. As stated, the above judgment was entered September 8, 1925. The writ of garnishment was served on Berkman as independent executor on September 12, 1925. It will thus be seen, at the time the writ was served, a judgment of the court had already determined the assets sufficient to satisfy all legacies in full and awarded to Mrs. Bornstein judgment for her $1,000 legacy and execution to enforce same, thus sweeping away all doubt, either actual or imaginary, of her right to her legacy and the amount of same, unless same was rendered uncertain by the appeal of Thomas, taken later. The garnishee is required to answer what he was indebted at the time he answers as well as at the time of the service. At the time he was required to answer, October 6, 1925, the entire estate had been converted into money and judgment entered for Mrs. Bornstein for her $1,000, as shown by the record and as shown by the original answer of the garnishee, and there was nothing left to be determined, except the appeal of Morris Thomas. The judgment in favor of Mrs. Bornstein in no way changed the nature or character of said claim — it was still subject to the writ of garnishment, and it is thought clearly the subsequent appeal from said judgment, both proceedings being in the same court, did not affect the garnishment lien which had attached by the service of the writ. The garnishee in his original answer could neither affirm nor deny his indebtedness to Mrs. Bornstein, so he properly set forth the legacy, as provided for in the will, its probate, the judgment in favor of Mrs. Bornstein in the suit for distribution, for said legacy of, 1,000, and the appeal by *874
Morris Thomas therefrom. But none of these matters affected the garnishment lien which had attached by reason of the service of the writ. The trial court, it is thought, pursued the proper course in continuing the garnishment suit on his docket until the appeal by Thomas was disposed of, and then granting the garnishee leave to file the amended answer, at least, it was not error for him to do so. Article