151 S.W. 621 | Tex. App. | 1912
Lead Opinion
This is an action of trespass to try title to three-fifths of 1,328.89 acres of land in Nueces county out of the Puenfici-tas grant, instituted by appellant against R. Driscoll, Samuel Althaus, and Jim Jacobson. Appellee Driscoll pleaded not guilty, and three, five, and ten years’ limitation, and further pleaded his title to the land through a sale made by the executor of the estate of Mrs. Ursula Daimwood under authority of an order of the probate court of Nueces county, and that each of the heirs of Mrs. Ursula Daimwood, among the number appellant and Ida Magnenat and Amelia Augusta Daimwood, whose interest in the estate appellant claimed, received his or her proportion of the money received from the sale of the land, and each, in all things, fully ratified said sale. The suit was dismissed as to Althaus and Jacobson by appellant, and the cause was tried by the court and judgment rendered in favor of appellee.
On May 14, 1895, Mrs. Ursula Daimwood died in Corpus Christi, Nueces county, leaving a will in which she bequeathed the land in controversy, which she owned in fee simple, to her five children, Lelia Belle Daim-wood, now Henderson, born September 18, 1880, Maggie May Daimwood, born February 14, 1882, Ida Gertrude Daimwood, now Magnenat, bom November 1, 1883, Amelia Augusta Daimwood, born January 12, 1885, and appellant, William Henry Daimwood, born June 7, 1886. Lelia Belle was married to Fred D. Henderson December 6, 1905, and Ida Gertrude to Fred L. Magnenat October 25, 1906.
It was provided in the will that Charles A. Meuly, the brother of the testatrix, should be the executor of the will, and on March 23,
In order to procure a sale under the provisions of chapter 22 of title 39, Rev. Stats., it is provided that an application for an order of sale shall be in writing, with a description of the real estate sought to be sold, accompanied by an exhibit in writing, verified by the affidavit of the executor or administrator, showing the claims approved and established by suit against the estate and the amount claimed on each, the estimated expenses of administration, and the property remaining on hand liable for the payment of such charges and claims. Article 2123. The citation in that case is a general one to all persons interested in the estate, describing the land to be sold, and requiring such persons to appear at the term named in such citation and show cause, should they so desire, why the sale should not be made. The citation is to be posted in the manner provided for other citations for 30 days, and the return made in the usual manner. That kind of notice was given in this case.
The application for the sale could not have been one for partition, although it so stated therein; for it had none of the essentials of an application for a partition. As an application for the payment of debts, although defective, it would form the basis for an order that could not be attacked in a collateral proceeding.
The application made by the executor, while imperfect as an application for sale for debts, was treated as one by the court, and all the proceedings were taken as under an application for sale, and not for partition. There was no application for partition; but it is merely stated as an inducement to or reason for the sale that the property was not bringing interest, and was incapable of partition among the heirs. The executor did not ask the court to partition the land, but only sought to sell; and the court did not in terms authorize a partition, but did grant the authority to sell. That a partition was not desired is further apparent from the fact that only a part of the lands of the estate were included in the partition. In his report of sale the executor did not mention a partition, but merely reported a sale and prayed for a confirmation of the same; and in the order of confirmation there is no mention of a partition, but only of a sale which was approved and confirmed by the court. There was no partition of the estate, or any part of it, by the executor until the heirs had reached their majority. The rules relating to the sale of property of an estate, and not of partition, must be applied in this case. The application for sale was undoubtedly defective, but it is not subject to collateral attack. Taffinder v. Merrell, herein cited; Driggs v. Grantham, 41 S. W. 408.
The judgment is affirmed.
Rehearing
On Motion for Rehearing.
The probate court is one of general jurisdiction in matters pertaining to estates of decedents, and .this attack on its judgment is a collateral one, subject to the rules that prevail in regard to such attacks. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Alexander v. Maverick, 18 Tex. 179, 67 Am. Dec. 693, Guilford v. Love, 49 Tex. 735; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650.
It is earnestly insisted that the court attempted a partition of the land, and yet no partition is mentioned in the report of sale or order of confirmation; and in his final report it is shown that there was'no partition of the proceeds arising from the sale of the land. No reference is made to a partition after the mention in the order of sale
The order of sale was not void, and was ratified by appellant.
The motion is overruled.
Lead Opinion
This is an action of trespass to try title to three-fifths of 1,328.89 acres of land in Nueces county out of the Puenticitas grant, instituted by appellant against R. Driscoll, Samuel Althaus, and Jim Jacobson. Appellee Driscoll pleaded not guilty, and three, five, and ten years' limitation, and further pleaded his title to the land through a sale made by the executor of the estate of Mrs. Ursula Daimwood under authority of an order of the probate court of Nueces county, and that each of the heirs of Mrs. Ursula Daimwood, among the number appellant and Ida Magnenat and Amelia Augusta Daimwood, whose interest in the estate appellant claimed, received his or her proportion of the money received from the sale of the land, and each, in all things, fully ratified said sale. The suit was dismissed as to Althaus and Jacobson by appellant, and the cause was tried by the court and judgment rendered in favor of appellee.
On May 14, 1895, Mrs. Ursula Daimwood died in Corpus Christi, Nueces county, leaving a will in which she bequeathed the land in controversy, which she owned in fee simple, to her five children, Lelia Belle Daimwood, now Henderson, born September 18, 1880, Maggie May Daimwood, born February 14, 1882, Ida Gertrude Daimwood, now Magnenat, born November 1, 1883, Amelia Augusta Daimwood, born January 12, 1885, and appellant, William Henry Daimwood, born June 7, 1886. Lelia Belle was married to Fred D. Henderson December 6, 1905, and Ida Gertrude to Fred L. Magnenat October 25, 1906.
It was provided in the will that Charles A. Meuly, the brother of the testatrix, should be the executor of the will, and on March 23, *622 1896, he duly and legally qualified as such, and, together with appraisers, returned into court an inventory and appraisement of the estate; the land in controversy being included therein. The inventory and appraisement were duly approved, and on May 4, 1899, the executor applied for and obtained from the probate court an order of sale of the land in controversy. The application for an order recited "that there are now no debts against said estate, except what is due your executor, and that said estate is not capable of partition among the heirs of said estate in a manner that would be just and profitable to them, or any of them, and that, in order to partition said estate with any degree of accuracy, a sale will be necessary." The only citation of the heirs indicated by the record was by posting notices.
In order to procure a sale under the provisions of chapter 22 of title 39, Rev. Stats., it is provided that an application for an order of sale shall be in writing, with a description of the real estate sought to be sold, accompanied by an exhibit in writing, verified by the affidavit of the executor or administrator, showing the claims approved and established by suit against the estate and the amount claimed on each, the estimated expenses of administration, and the property remaining on hand liable for the payment of such charges and claims. Article 2123. The citation in that case is a general one to all persons interested in the estate, describing the land to be sold, and requiring such persons to appear at the term named in such citation and show cause, should they so desire, why the sale should not be made. The citation is to be posted in the manner provided for other citations for 30 days, and the return made in the usual manner. That kind of notice was given in this case.
Probate courts are courts of general jurisdiction in matters pertaining to estates of deceased persons. Murchison v. White,
The citation was issued as provided for in case of a sale of land to pay debts, but the application for the sale does not comply with the law; but it has been held that, event though the application fails to state the grounds given by statute, still that will not render the sale void. Kleinecke v. Woodward,
The application for the sale could not have been one for partition, although it so stated therein; for it had none of the essentials of an application for a partition. As an application for the payment of debts, although defective, it would form the basis for an order that could not be attacked in a collateral proceeding.
If there was no notice of the sale given by the executor, it would not follow that the sale was void; for it has been held a number of times in this state that orders of sale of real property, without the notice prescribed, are not void, but merely irregular and voidable. George v. Watson,
When the court acted upon the application and made the order of sale and then confirmed it, appellee was not required to look beyond those orders, and could proceed upon the assumption that the order was properly made upon notice and facts that authorized it. Weems v. Masterson, herein cited; Robertson v. Johnson,
The money arising from the sale was used for the maintenance and support of the heirs, and all of them, having full knowledge of the sale, ratified and confirmed it when they became qualified so to do. All the facts and circumstances tend to show that they knew about the sale of the land *623
and settled with the executor and gave him a full receipt for everything for which he was indebted to each of them. He testified to that fact, and none of them denies it. The land brought its market value, and appellant, as well as his sisters, received the benefit of every dollar of it. It has been held that an infant is not permitted, in equity, to enjoy the proceeds of a sale of his property, and then repudiate the sale as irregular or void, any more than an adult, whether the sale is by act of the infant or by authority of law. Goodman v. Winter,
Ordinarily any words or conduct clearly and unequivocally indicating an intention to be bound by the contract is sufficient. Mechem on Sales, § 104. In Bingham v. Barley,
The application made by the executor, while imperfect as an application for sale for debts, was treated as one by the court, and all the proceedings were taken as under an application for sale, and not for partition. There was no application for partition; but it is merely stated as an inducement to or reason for the sale that the property was not bringing interest, and was incapable of partition among the heirs. The executor did not ask the court to partition the land, but only sought to sell; and the court did not in terms authorize a partition, but did grant the authority to sell. That a partition was not desired is further apparent from the fact that only a part of the lands of the estate were included in the partition. In his report of sale the executor did not mention a partition, but merely reported a sale and prayed for a confirmation of the same; and in the order of confirmation there is no mention of a partition, but only of a sale which was approved and confirmed by the court. There was no partition of the estate, or any part of it, by the executor until the heirs had reached their majority. The rules relating to the sale of property of an estate, and not of partition, must be applied in this case. The application for sale was undoubtedly defective, but it is not subject to collateral attack. Taffinder v. Merrell, herein cited;
Driggs v. Grantham, 41 S.W. 408.
The county court of Nueces county undoubtedly had acquired jurisdiction of the estate of Ursula Daimwood; and the court was as certainly within the exercise of its ordinary functions in selling the land to pay the debts of the estate, whether they were due the executor or any one else. The failure to show the expenses and claims of the executor in the application for sale did not render the sale void; and, even though there were no debts due to any one, the sale would be merely voidable, and could not be attacked in a collateral proceeding. Jackson v. Houston,
It is earnestly insisted that the court attempted a partition of the land, and yet no partition is mentioned in the report of sale or order of confirmation; and in his final report it is shown that there was no partition of the proceeds arising from the sale of the land. No reference is made to a partition after the mention in the order of sale *624 that it was made "for the purpose of distribution among the heirs of said estate."
The application for sale represented that debts were due the executor; and it will be presumed that the law in regard to claims of an executor or administrator was fully complied with. Lyne v. Sanford,
The order of sale was not void, and was ratified by appellant.
The motion is overruled.
