Alford v. Halbert

74 Tex. 346 | Tex. | 1889

Collard, Judge.

This is the second appeal of this case. See Fortson v. Alford, 62 Texas, 576. The former appeal was by Mrs. Fortson, now Mrs. Halbert, the present appellee, from the judgment of the District Court of Dallas County, sustaining exceptions to her petition, and resulted in a reversal of the cause for trial on the petition.

On the former appeal the orders of the Probate Court of Anderson County in the guardianship of Earle Cravens and the orders of the Probate Court of Dallas County in the administration of the estate of the •deceased minor were reviewed and discussed,' and it is claimed by appellees that it was the opinion of the Commission of Appeals, whose conclusions and opinion were adopted by the Supreme Court, that the Anderson County Court, after the death of the ward, still had control of her estate for the purpose of settlement with the guardian," and that therefore the Dallas County Probate Court had no jurisdiction over the estate to grant letters of administration or to order sales of property to pay the debts against the estate. The Probate Court of Anderson County restated the final account of the guardian Alford, requiring him to account for land (twenty-four tracts) which had been conveyed by the minor to W. Gr. Veal in trust, fixed the aggregate amount of the debts of the estate at 81569.86, of which 81061.76 were due the guardian and the residue to others. It also ordered the guardian to retain in his hands, subject to future orders of the court and for the payment of the debts, seven tracts of land, which after payment of the debts it or what was left of its proceeds was to be delivered to the heir of the minor Mrs. Fortson. The court deeming the seven tracts sufficient to pay the debts ordered the guardian to turn over to the heir all the rest of the estate, and it was further ordered that “if the said Mary P. Fortson (the heir) should satisfy and pay off said debts and costs that Alford (the guardian) should deliver to her the lands to be retained by him.”

Alford appealed from this judgment to the District Court of Anderson County, filing his appeal bond on the 30th of August, 1880. The District Court rendered substantially the same judgment as that appealed from, when Alford again appealed to the Supreme Court, which affirmed the judgment on the 2d day of October, 1882.

In September, 1880, the month following that in which the appeal was perfected from the decree of the Anderson County Probate Court, Alford applied to the Probate Court of Dallas County for letters of administration upon the estate of his deceased ward, setting up that she resided in Dallas County at the time of her death, that at the time of her death she owned considerable real and personal property worth about $700, and that there were debts outstanding against her estate, and that, deceased was indebted to him.

The administration was granted and inventory filed of only four tracts, of land, that not embraced in the Veal deed, which were sold by order of the court to pay the debts, and application was then made by the administrator to sell the remaining three tracts ordered to be retained by him by the Anderson County Court to secure the payment of debts, when on the 28th of February, 1882, the heir (Mrs. Fortson) filed a bill of review in the Dallas Probate Court asking the court to review and annul all former orders in the administration upon the ground that the court had no jurisdiction and that the administration was obtained by fraud. The court upon hearing granted the prayer and declared the administra-, tion null and void for want of jurisdiction, and canceled all former proceedings. Alford appealed to the District Court of Dallas County, whereupon demurrer of defendants the court sustained the demurrer and dismissed the case.

From this judgment Mary P. Fortson appealed to the Supreme Court, which, on the 5th day of December', 1884, reversed and remanded the cause, as before stated. The judgment in the District Court of Anderson County in the guardianship proceedings was affirmed by the Supreme Court October 20, 1882.

In reversing the cause on appeal of Mrs. Fortson from the judgment, of the District Court of Dallas County dismissing her bill of review, the opinion of the commission argues as follows: “All the parties at interest were before the court when these proceedings were had in Anderson County. The court there had jurisdiction of the entire subject matter of the estate of Earle Cravens, deceased-—appellant’s asserted right thereto and Alford’s -claim against the estate. Upon Alford’s own application, and it seems without any objection upon the part of appellant, he was. permitted to retain' control of seven tracts of land, which were adjudged to belong to appellant, to secure the payment of his claim; and by the terms of the decree the appellant had the right to pay off the claim and thereby secure the possession of the seven tracts of land. But Alford by his appeal to the District Court suspended appellant’s right to pay the claim and secure control of the land, or at least rendered the exercise of that right doubtful. Dnder such state of case certainly the County Court of Dallas County would have no jurisdiction or power over the subject matter of the litigation then pending in the courts of Anderson County.” Then, after reciting the allegations of fraud, the court say: “ Dpon these allegations, aside from the question of want of jurisdiction or want of power in the County Court of Dallas County, appellant was entitled to a hearing.” The court expressly declined to decide whether the Probate Court of Anderson County, after the death of the ward, on settlement of the guardian’s final account, had the power to order a sale of lands of the estate to pay the debts still due. The Probate Court of Anderson County had not assumed such power. After adjusting the account requiring the guardian to account for all the land, as well that not embraced in the minor’s deed to Veal as the other four surveys not conveyed, the court ordered him to deliver to the heir twenty-one of the tracts of land, and to retain the remaining seven subject to payment of the debts found to exist, giving the heir the option to pay the debts and take all the land. The court then refused to discharge the guardian, but ordered his application for discharge “postponed until the payment of all the debts against said estate, and that he report to this court.” The District Court on appeal did not assume to order a sale of any of the seven tracts of lands to pay the debts, and on appeal of that proceeding to the Supreme Court, Chief Justice Could, noting the fact that no order of sale was made by the court, said “no question as to its power to do so is before us.” He said, however, that the Probate Court, and on appeal the District Court, had the power to do what was done.

How, what proceedings were pending in the guardianship to which the language of Judge Watts, in the extract from his opinion above quoted, can apply? Hot a sale of land to pay debts. The entire proceedings were by order of the court suspended until the debts were paid out of the land adjudged to stand in the hands of the guardian subject to the debts, or until Mrs Fortson should avail herself of the privilege allowed her to pay off the debts. The court did not require her to pay the debts. There was nothing pending then except. Mrs. Fortson’s right of choice to pay off the claims against the estate and the final discharge that would follow, for which the guardianship was continued. This option to pay the debts she has never exercised. It is admitted in proof on the trial that she has never offered or tendered payment, though the judgment authorizing her to do so was affirmed in October, 1882, since when there can be no pretense of her intention to do so, or that she ever had any such intention, notwithstanding Alford’s appeal from the judgment of the Prohate Court of Anderson County to the District Court, had she offered to pay the debts and made a tender, as she could have done, then there would have been no occasion for the administration in Dallas County. The facts now before us show that she never intended to do so, and that no right she intended to exercise was suspended by Alford’s appeal to the District Court, and in such case Alford had the right to apply to another tribunal that had power to order a sale of the land and carry into effect the order giving security on the seven tracts of land to satisfy the debts unless the Probate Court of Anderson County in the guardianship had that power.

The orders of the court left him in possession of seven tracts of land subject to the claims, but made no provisions for the enforcement of the lien by sale. Mrs. Fortson then making no tender of the amount of the claims, how was he to force a sale of the land and obtain the funds to discharge the debts and to secure his discharge? He could not apply to the District Court for such order because he could not show that there was no necessity for administration. We think the only course left him was to administer in the proper court upon the estate of the deceased ward. There is no authority under our law in a guardianship proceeding giving the Probate Court jurisdiction to order a sale of land to pay debts after the death of the ward. “Death of the ward necessarily terminates the guardianship.” Fortson v. Alford, 62 Texas, 580.

Under the statutes of this State upon the death of a ward the guardian must make final settlement by filing his final account, notice of which must be given to his executor or administrator if he have one, and if he have none notice is provided for by publication or posting. Upon the approval of the account the court is required to direct the guardian to deliver the estate remaining in his hands to some person authorized to receive it, upon a compliance with which the guardian is to be discharged. Rev. Stats, arts. 2686-88.

The allegations of fraud in procuring the administration were not sustained by proof. The proof shows that Mrs. Fortson never intended to avail herself of the privilege of paying the debts shown to be due by the guardian's final account, and hence the appeal of Alford from the probate orders of the Anderson County Court to the District Court in no wise injured her in respect to that right. Such right is shown by the proof to be of no jurisdictional importance if it ever had any in the abstract.

We conclude the court erred in revoking the letters of administration and other orders of the Probate Court of Dallas County, and that the cause ought to be reversed and dismissed.

Reversed and dismissed.

Adopted June 18, 1889.