75 S.W. 16 | Tex. | 1903
This case had its origin in a bill of review filed in the County Court of Travis County, by John D. Rogers, in right of his wife Emma Pearl Haigler Rogers to review certain *63 orders of that court made in the course of the proceedings in the matter of the estate of Emma Pearl Haigler, a minor. In the year 1895 letters of guardianship were granted to the appellant De Cordova upon the estates of Morris B. Haigler, Ruth A. Haigler and Emma Pearl Haigler, who were then minors and who had inherited real property from their mother. On April 2d of that year, De Cordova accepted the trust and qualified as guardian of the estates of the minors. On December 28, 1898, Emma Pearl Haigler intermarried with the plaintiff John D. Rogers. Some time subsequent to that date the defendant in error instituted this suit. When the original bill of review was filed the record does not disclose; but after the case was appealed to the District Court it does appear that on the 21st day of February, 1901, a fourth amended bill of review was filed, upon which the case was tried. This pleading was filed in lieu of a third amended bill of review, which was filed on the 12th day of December, 1900. It seems that when the original proceeding was instituted the guardian had filed his final account for the settlement of the estate of Mrs. Rogers in his hands as guardian. In the account of the guardian there were five claims allowed in favor of the father of the ward, mainly for her support and education, which had been transferred to third parties who were made parties to the suit. All had been duly authenticated, allowed by the guardian, approved by the County Court and entered on the claim docket, and as to claims 4 and 5 the order of approval was entered at large upon the minutes of the court. But no such order was made as to the other three.
The bill sought to have the first three claims wholly disallowed, because of the failure to enter the order of their approval upon the minutes; and in case that could not be done, that action of the court in approving them as well as its action in approving the other two be reviewed, and that all of them be disallowed upon their merits. The bill also sought to charge the guardian with certain items, which need not be noticed in disposing of the writ of error.
The trial judge in the District Court held that claims 1, 2 and 3 were nullities, for the reason that the orders approving them had not been entered upon the minutes of the County Court, and wholly disallowed them. He also held that claims 4 and 5 exceeded the sum which should have been allowed for the maintenance of the ward, and disallowed as to the excess. Judgment was entered restating the account upon that basis and also surcharged the guardian's account with certain debits claimed in the petition.
The Court of Civil Appeals affirmed the judgment of the District Court, and to revise the action of the latter court this writ of error has been granted.
Were claims 1, 2 and 3 nullities for the reason that the respective orders approving them were not entered on the minutes of the court? Article 1853 of the Revised Statutes provides that: "All such decisions, orders, decrees and judgments shall be entered on the records of the *64
court, during the term at which the same are rendered, and any such decision, order, decree or judgment, shall be a nullity unless entered of record." It was held in the case of Blackwood v. Blackwood,
We therefore conclude, that since the claims now under consideration, after being authenticated, were presented to the guardian, allowed by him, and were thereafter approved by the County Court and the approval duly entered on the claim docket, they became established claims against the estate of the ward.
The next question which presents itself is, are claims in favor of third parties, which have been duly established as such by the county court, subject to be revised and disallowed either in whole or in part by a bill of review? The language of the statute with reference to the review of proceedings in matters of guardianship is as general as language can make it. The following is the provision of the Revised Statutes upon the subject: "Any person interested may, by a bill of review filed in the court in which the proceedings were had, have any decision, order or judgment rendered by such court, or by the judge thereof, revised and corrected on showing error therein. But no process or action under such decision, order or judgment shall be stayed except by writ of injunction." Art. 2799. It would seem that this provision must of necessity be subject to some limitation. For example, it was hardly contemplated that the action of the court in appointing a guardian would be subject to be revised many years after the appointment has been made. We have not found that the statute prescribes any special limitation as to the time in which the suit may be brought. The general limitation of four years would probably apply, but minors are excepted during the period of their disability. Hence, if such an order can be revised by a bill of review, it would seem that after a lapse of many years, the whole proceedings in the administration *66 would be subject to be set aside, by reversing the order appointing the guardian.
But even if it should be held, that the article is subject to no exceptions growing out of the nature of the order to be reviewed, we are of opinion that the provision of the statutes in reference to the allowance of claims conflicts with it and makes an exception. Articles 2717 and 2718 declare: "Article 2717. The order of approval or disapproval of a claim has the force and effect of a judgment. Article 2718. When a claimant or any person interested in a ward shall be dissatisfied with the action of the court in approving or disapproving a claim in whole or in part, he may appeal therefrom to the district court as in the case of any other judgment rendered by said court." Now it seems to us that the mention of one remedy for the correction of the judgment excludes all others. Article 2789 gives to "any person who may consider himself aggrieved by any decision, order or judgment of the court, or by any order of the judgment thereof," the right of appeal to the district court without bond. This is as general as the article which allows a bill of review. A right to a certiorari is given in terms equally broad. Rev. Stats., art. 2800. Now if article 2799 gives the right to revise by a bill of review an order approving or disapproving a claim, or if article 2800 allows a writ of certiorari for the same purpose, it is clear that under article 2789 there would have been a right of appeal from such order and the provision in article 2718, which specially provides for an appeal, was wholly unnecessary. Therefore we are of opinion that the Legislature considered that neither articles 2789, 2799 or 2800 authorized the revision of the order of approval or disapproval of a claim by the several procedures therein mentioned, and that their intention as manifested by article 2718 was to give the right of appeal only.
If it be urged that it is unjust to a minor not to have an opportunity to contest a claim after the removal of the disability, the answer is, that the establishment of a claim as a finality is necessary to the interest of the minor and to the administration of the estate. Who would extend credit to a guardian for the support, education or for other necessaries of a minor if after the claim was established in the county court, its action was subject to be reviewed at some remote period? Besides, the right to a bill of review is given to "any person interested" in the decision of the court. Therefore if article 2799 applies to the approval or disapproval of a claim, a claimant whose claim had been disapproved could bring a bill of review at any time within four years after the order was made. We do not think this was contemplated by the Legislature.
But we think this question is practically settled by the decision of this court in the case of Eastland v. Williams,
It follows from what we have said, that in our opinion the District Court erred in holding that the approval of claims 1, 2 and 3 were nullities and in reviewing and disallowing in part claims 4 and 5, and that therefore the judgment should be reversed and the cause remanded *68 with some general instructions as to the principles upon which the account should be restated.
Since it does not appear that before the accounts were incurred for the education and support of the ward an order had been made and entered upon the minutes of the court which authorized the guardian to expend more than the income for that purpose, we think the approved claims, in so far as they are for the education and maintenance, can be charged only against the income. Jones v. Parker,
By the judgment of the District Court which was approved by the Court of Civil Appeals, the guardian was charged with interest upon money in his hands which he should have lent. If he had so lent it, the interest received would have been income; and therefore whatever interest may be charged against the guardian on that score should be added to the income of the estate.
The income and expenditures for education and support should run concurrently; and when the income for the period covered by a claim of that nature has been applied to such claim, the balance appearing to be due upon it should be held of no effect, there being no fund belonging to the estate from which it can be paid.
The claims for support and education which accrued previous to the appointment of the guardian were credited with the rents of the period for which support was charged. It not appearing that any rents for that period ever came into the hands of the guardian, there are no funds on hand which can be applied to their payment. Therefore we think, that as the evidence now appears no credit should be allowed upon the final account for such claims.
The judgment is accordingly reversed and the cause remanded to the District Court. The defendant in error will pay the costs of the appeal to the Court of Civil Appeals and of the writ of error to this court. The costs of the District Court will abide the result of the suit in that court.
Reversed and remanded. *69