*1
(Tеx.
App.) 55 S.W.
Securities Inv. Co.
Com.
(2d) 551;
Allbright
(Tex. Civ.
Smith v.
Barnes notes.
Reversed and remanded.
See, also, S.W.(2d) 235. Jaffe, Leo Howe, Burges Richard P. and Walter S. appelleеs. both El ARMSTRONG et al. v. ANDERSON No. 2976. PELPHREY, Justice. Chief William K. the husband of El Court of Paso. Civil February 14, in El died Paso (then He left a Mrs. will which 10, 1934. May Marr) designated Mrs. Appellee employed executrix appellant this estate. placed probat- hands ing management will personal handling affairs and busi- ness, as well as the business representative to be handled her as agreement estate. Marr No had as to the amount of fees was to receive. probated, appellee qual- After the will was ified sеrved until 8th day May, 1928, she, operation advice suspended by the will had of two birth especially children after its execution and portion executrix, naming applied appointed court to be as ad- She continued as ministratrix. throughout year, trix the remainder of the 1928, through May 13, 1930, and until resigned. accompanied In her final account which resign, appeared there following: *2 g02 alleged foregoing Ad- that was that excessive. She she and “The above ignorant $80,- that had of such amounts the sum been has received ministratrix allowance, year $34,276.33 until a after their paid sum the of out and has S36.57 copy letter and a law, to claim received from of a she entitled the specified report. $5,811.67. his then She of sum
her
the
cеrtain items
final
included
her
employed
heretofore
“The Administratrix
alleged
erroneously
which she
attorney
Elof
at
O. R.
represent
they,
because
did not
cash
the
Texas,
probate
and take
to
the will
paid
prayed for
received or
out. She
the
administration,
all the
handled
has
and he
and her reinstatement
said estate
with
in connection
work
and a reconsidera-
including the
beginning up
and
to
the
from
filing
reauditing
and
and
of
fees
report,
ad-
approval
and
of this
and
Further,
the administratrix’s fees.
she asked
necessary
alleges
it was
that
ministratrix
reauditing
a
and
of commis-
reconsideration
attorney per-
attorney,
employ
and
by appellant;
that
sions claimed
he be
and
by
services,
the Court
shown
formed
papers
moneys
made to
into the estate
withheld.
in which
conferences
herein and
your
in con-
attorney
administratrix
advised
Appellant
by plea
abatement,
answered
pertaining
es-
nection
general
special exceptions,
general
and
and
tate,
your Administratrix believes
and
special
Upon hearing,
pro
and
denials.
per-
so
services
for such
fee
reasonable
a
appellant;
bate court removed
ordered
аttorney
benefit
complete
formed
accounting
a
to file
of
adminis-
your
be,
has
administratrix
and
estate
tratorship,
and
directed
clerk
* *
*
$4,500.00.'
a
of
fee
appellee.
reissue letters
An
appeal
represents
taken to the district court where
was
further
“Your Administratrix
4, 1932,
was rendered March
it
that she believes
states
and
appeal
perfect
removing
An
was
administra-
continue
will be
the district
ed to this
and
court’s
reason that there
said estate
tion of
affirmed,
аppellant'
removing
action
was
unpaid,
to waive
desires
and she
are debts
the trial court cor
and this
rectly
held that
appointment
rights
Administratrix
her
reappoint appellee.
refused
Arm
suggest
nominate
strong Anderson,
(2d)
Texas,
ap-
A
S.W.
235. writ
Armstrong
Supreme Court was
dismissed
the Will annexed
pointed Administrator with
jurisdiction.
acceptance
for want
estate, upon
the res-
your
ignation
Administratrix.”
pending
was
in this
While the cause
joined
husband,
appellee,
her
filed
her
Forty-
petition
“And
furthеr the
for a
of certiorari to
order:
writ
entered this
approves
the Administra-
First district court.
fees at the
trix’s
resignation
set out
In her
she
her
expenses of
at-
administratrix’s
torney’s
administratrix;
at
she
in- the
fees rendered
signed
her-
sum
R.
heretofore
O.
hаd
and administratrix’s fees
fees
$4,500.00.”
representation
appel-
left
blank
resignation
accepted May
Appellee’s
on
was
amounts would
lant
day appellant qual-
13th,’
following
on
court;
had
and allowed
erroneously
that the сourt
During
the estate.
administrator of
ified as
(enu-
certain
allowed her
then Mrs.
the same month
them);
merating
that the court had also erred
Anderson,
moved
C.
Rembert
married
appellant upon
in certain
made to
allowances
Apрellant
filed
account;
California.
first annual
the erroneous
on
her,
June
account
by
so made to
allowances
July
trix,
prejudicial
ghown
$4,500 attor-
in-
account that the
beneficiary
as an heir at
law and sole
except $435.83,
paid
ney’s fees had all been
thereof;
estate and
a creditor
except
expired
that'
had
her time for
appellee’s
as administratrix.
still
estate was
administered. She
in the coun-
for a
her account as
October
appellant’s
against appellant in
ty
suit
which administratrix
court a
writ was ordered
issued
sum
allowed administrator.
excessive,
$4,- upon
making
bond.
gross-
abatement,
plea
bar,
plea
fees was also
allowed as
swer filed
exceptions,
demurrеr,
general
special
of elusion
of some of the
limitations,
denial.
and evidence. It was not the
.one,
because that was
Upon
court, judgment
of.
a trial before the
was not the matter of the
was rendered that the final account of Mrs.
*3
appellee
testamentary
letters
administratrix,
rea-
Andersqn,
two
as
amended and
be
(1)
sons:
Because the court concluded from
reaudited;
im-
certain items had been
her,
the facts
found
her actions in
properly
allowed
that she be allowed
bate
tion,
resigna-
court were tantamount
to her
$3,209.97,
$4,500
sum of
and that the
allowed
(2)
because the
attorney’s
reissuance of letters
as
fees in
final account be
said
to her was a matter which could not have
and stricken from the
disallowed
account.
hearing
on the final
perfected
This
has been
from said
account of the administrator.
judgment
apparent
It therefore seems
that the
Opinion.
last
matters, being
two
prop-
matters whiсh could
judgment which the district
The
court
erly
presented upon
hearing
on the
rendered March
contained
follow
administrator’s
were the
mat-
ing provision:
judgment
“Further
to be ters to
assign-
which the
referred.
prejudice
any person
interestеd to ments are therefore overruled.
adjudicated
present matters not herein
Assignments
Probate Court
the final account of
3 to
relate to the
Administrator.”
refusing
trial court’s action in
to allow the
$4,500
attorney’s
Appellee,
item for
By
provision,
fees.
in
virtue
certiorari,
alleged:
judgment
in that
concluded that
case
judicata
sought
as to the matters
was not res
respectfully
“Plaintiff
shows to
litigated
to be
here.
application
time
resign
said
Appellant’s
two
administrаtrix,
annexed,
with the will
overruling
the trial
in
court’s action
said verified exhibit of said estate and ad-
judicata
holding
of res
and his
presented
ministration
plain-
account were
provision
signature
excluded from the
above
verification,
tiff
restating and
rendered March
auditing
re-
figures
there were no
ing any
therein or thereon show-
appellee
money
sum of
to be allowed as at-
appellant,
torney’s
the first annual account of
these
Armstrong,
said
figures
matters here involved.
therein
any
fees or
amount of fees which the
reply, appellees
contend that
requested
allow,
but that the defend-
provision excluded the
of the final
ant,
plaintiff
Otto R.
informed
the first annual
commissions,
the amount of such fees or
account of
from the matters ad-
attorney’s
and the
amount of
fees to
suit,
that,
judicated in the first
the trial
fixed,-
to himself would be
having
found
action of
plaintiff
and that his
in the
court was tantamount to her
nothing
to do with thfeallowance or fix-
resignаtion as
executrix of the
ing.
plaintiff
thereof.
in
That
fact
will,
there remained
asked the court for an
allowance of
sums
to restate or audit her final
in commissions or
for the reasons above
administratrix.
stated.
argued
join-
As
there’ was а
“That it further
suit,
from said first
of four causes
action in
der
viz.,
the first
report
nual
the defendant Otto
R. Arm-
as administra-
strong, and the
tor,
accounts and
exhibits
letters
attached, that
said
Administrator claimed
revision and
restatement of
approved the-pay-
and the Court
administratrix,
her final account as
ment of a commission of
on the sum of
revision and restatement
report
shown in said
to have been
account.
appropriated by said administrator out of
granted
The court
reliеf
the funds
said
of for,
pronouncement
made no definite
to re-
attorney’s
claim for
fees for services
issuing
testamentary,
letters
and did not
plaintiff,
rendered to
as administratrix for
way
dispose
prayers
for revi-
estate,
plaintiff respеctfully
said
sion and restatement of the accounts.
agreed
court that she
never at
entering
preju-
“without
to defendant
sum of
the sum of
evidently
provision,
dice”
had mind the ex-
defendant
by appellees.
fees;
a bond in the
sum of $600
that no
executed,
plaintiff,
Bond
Adminis-
but in the sum of $500
was ever
estate,
lias, ever
instead
asserts that
$600.
now
tratrix of
against
juris-
confer
bond was insufficient to
$500
Docket,
estate,
Claim
diction
on the district
This contention
nor entered
court.
made,
required by
claim bаs
an
and no
unsound. Where
effort
bond,
plaintiff,
give
the court will
ever been
Administratrix,
Berry
applicant
execute
sufficient one.
Edwards,
says
Martin,
since,
plaintiff
Court erred
Edmiston v.
account, showing