*1 to, probate an di secure order of court then, recting payment, and if the admin its HURLEY v. WHITE. obey istrator refuses to order the breach of for the distributee is entitled interest duty, or, if administrator Court of Texas. Civil Dallas. unlawfully fund intrusted converts the 14, 1933. Oct. benefit, beeping, own use An then admin liable for interest. Denied Nov. required legally istrator distribute or except is not cannot custody, out funds probate it is a cannot he said that breach ¡refuse duty bution, proper distri pay a or refuse to claim without the paying or for order out the fund when authorized probate so of a to do. binding in the course of thereto, on the estate and until the claimants judicial'proceedings. vacated instant the fund the administratrix distributed belonging to the probate order either for not liable thus principal annulled, such judicial order determination made to whom and when the fund should only perform duty she her if declines imposed. reforming In lower fund in distribution of the court and administratrix, we allowing appel commuted the amount legitimate expenses lant a deduction for Expenses administra merely tion are incident to an administra- torship, (Rev. limited allowable statute art. St. thus deductible distributed, without to order approved for and be accounted on final hind, distribution. of this only required, not district court is the annul and set by improper aside but to enter such order as certify its decision to court for administration, being Costs merely thereto, allowable, incidental its deduction should have been made judgment of the lower court. no reason disturb the We see conclu- original opinion. sion reached in our All appeal on this are taxed
costs Nora Hirsch, cost in district against ap- follows pellant. Appellee’s motion for overruled, except recognizing Cantrell, Dallas, appellant. Barnie against appel- is taxable cost on this Kohen, Eades and Sam P. Eric both of lee, ion, expression opin- Dallas, for against appellee “all costs taxed Hirsch,” to so Nora V. tax the intended BOND, Justice. stated, as herein and we declare. suit was instituted Nora V. joined! by husband, Hirsch, Overtruled. her Jack *2 394
n designated Kelby, father, McFadin, Frank eficiary, Mae Kel- and by Hurley, temporary his ben- O. W. remaining of the installments administratrix Kelby, deceased, beneficiary long Mrs. of David if said lived estate P. were Kelby, enough installments, Kuhn, Joseph un- and to receive all such Kelby, any Ann heirs Nell installments re- known commuted value maining unpaid desig- writ of the tiorari to vacate and distribute administratrix, death of nature of beneficiary payable court nated of the to the would be in of the the funds estate of the insured. David as to the Kelby On June David F. in- died F. estate. testate, leaving surviving his as sole rela- Kelby (his wife), tives Nell Ann Frank Kel- appoint- authorized trial court The by (his father), and Nora V. who Nell Ann Kel- ment of by’s niece, claims to death was a abe his duly appoint- estate; was D. White W. legal resident the state of intervention, petition in ed and Kelby, beneficiary, Texas. Frank survived detail, he, asserted claim to in prior receiving the insured and died appellant and the other joining with issue monthly of the 240 installments. Adminis- parties suit. to the granted upon Keiby’s tration was David F. jury and, at the tried to case was The by estate court of coun- Dallas testimony, trial court of the conclusion directed ty, appellant, Olga Kelby Hurley,- intervener, judgment a verdict for appointed temporary administratrix, was the coun- the order of was rendered pol- and as such collected on said insurance court, directing ty the administratrix icy the commuted remaining unpaid after value the installments Kelby $9,428.50, Ann of Nell to the death of Frank sum, and, payment of said Kelby, amounting $9,428.50. to the sum of discharged appellant administratrix. as question heirship The as to when the Kelby Hurley Olga Mae The defendant determined, must in cases war wherei pealed. payable risk insurance after the death' strictly speaking, While, this case is designated beneficiary, of the subject has been the companion by decided one case to the many determination in (Olga states, including own, may be stat S.W.(2d) al., et 66 Hirsch Adm’x v. Nora V. it is now the settled law of this ed state; of the 387), yet $0,428.50 devolution it involves heirship such is determined as of the es to the this court allocated date of the soldier’s death. Turner et al. for its as a conduit David F. tate of. (Tex. App.) v. Thomas Civ. virtue under distribution and authorities cited. Act, enacted Risk Insurance the War (World squarely pro War Congress States case falls within the of the United 303, 1924, Congress, amended as act visions of said olution of the fund should the § the dev Act Veterans’ Act To 514]). 1925, § [38 USOA traced § extent, related cases are two laws descent and distribution of Texas, an governed law there as rules of state of of the date of the death unnecessary (ar to dis nounced, of the soldier. Article R. S. 1911 it becomes provides propositions, ticle R. S. that: same “Where cuss here involved in the appellant any person having any title to in estate of and decided carefully heritance, real, personal mixed, con shall We die case. cited estate, assignments in view as to such intestate and shall leave all of sidered surviving wife, facts uncontroverted a such husband estate of admitted of the of this assignments pass im record, become intestate descend fol n ** expressly they material, overruled. 2. If lows: the deceased have no and' case, propositions children, descendants, holding child or or their cited Our urged surviving appeal, a discussion the husband or concludes wife shall be en n * * ” assignments. to all the estate. appellant’s titled Kelby having in David died undisputed David F. leaving intestate, no child or children or States in the United a soldier descendants, surviving their wife inher War, he during while Army World ited all of his tor and the administra purchased term serving,.he a war risk was so posses- her estate is entitled $10,- principal sum of policy in the insurance sory right controversy, funds less payable policy being month- 000; ly pending ad policy each. The of -$57.50 installments upon the estate of David F. Kel- soldier, David F. Kel- provides if by. permanently totally disabled by, became force, monthly that the policy conclude We inwas favor, ordering controversy paid pay- court, funds mature would installments lived, of Frank long after him able ceased, improper, paid out, policy, in full if not death monthly court directed to order the payable installments to would drawn, record contention fore our in the instant case. We precludes further discussion here. quoted action of the lower court was made of the district court thus in the cited kindred charged,” contends that the low, decreeing the order D. til further court. “that closed, ment in this case is so stated is here amount, ion, holding that ministrator of the estate by, “the attention has been stated that court istration litigation paid closed, the cent and ed tion for ministration, is ministratrix, White, administrator, taxed tration on the costs and costs and less the tinued until further orders of the in accordance with our ty court for observance. court; tify entire applying Appellee, Affirmed. Judgment reformed; reformed White, administrator, the sum judgment conclusions the decision of this administration should be Kelby Hurley, Administratrix, (6%) where against in both * These and our legitimate appellee, White, finding “with interest a deduction for the On Motion for and on such * should administration be continued until per of expenses expenses on motion for district court the estate David F. of the district court is the case * and the administration contentions the is of Olga coriclusions cases and find that estate of David F. administratrix be annum,” of David F. appellee’s contentions; $9,428.50,less the directs stated in that the district court ordered to judgment the district “judgment in the related conclusion based thereon and the respect called appellee, White, opinion not be allowed of is affirmed. All costs fund finding bear interest and be holdings administration, *3 administration, Rehearing. thereon from the rate of six * were raised mo Kelby Hurley, have reviewed the in court to the coun- less all is our of Nell and the rehearing, sum of in this therein [*] directs the fact that the involved of the court be be directed expenses of the district correct; Kelby’s concluded that W. D. White. [*] continued un- original opin court.” Our ease of paid to W. is herein, discharged, appellee’s Ann- Kel- $9,428.50, reformed the affirmed, affirmed, adminis- and not reached, be dis- as the full v. Nora admin- to cer- assails there- of ad estate further order decid with- judg- April thus, Olga con- powers this per ad- we to direct the administrator D. erty of the estate which has vide: tify powers hereof.” virtue of an order of said retrial of the issues involved on the whenever cease minutes the account, tor, hands, court, “continued in full force and tion 19, 1932, If the administration be the case tributing ment of the administratrix for been reformed gally Mae ministratrix, March, 1932”; The district to review a ord, withdrawn. available to continue the no appointment, the estate of David the order of the trator maining vacation, tion of law and the ary 1, 1932, Olga of the court and a full exhibit and account as such administrator. account ly appointed temporary decree to be The administration Articles “Art. 3381. The “Art. 3380. period certiorari, disclosed appeal therefrom, entire fund its action to said approval nor does it shall be acted was ever Kelby Hurley, appointed, entitled to the to be immediately, a return of of the administratrix administration. The record - previously requiring the entire funds of the enter an order temporary probate matters, forthwith effect, bar involves sixty directs that the duly shall cease on the 7th effect from and must entered, making temporary temporary administratrix, by of the administratrix’s final At possession appear he shall file with the clerk should have probate court, making verified, closes the (60) of the district granted in certiorari list, return, either in term application upon by possession reveals very as such on letters shall deliver the estate rer temporary permanent. expiration Kelby Hurley orders make such that the administra days sales made temporary any cause, the order terms of administrator has administration, upon appointment, closed, a list of all to said estate. R. is confined closed court, expended to further act. administration, ‘‘power Olga appears temporary court” is probate court, extending were, by S. of the same.” decree is not for the writ come exhibit and administra- is all his acts orders. the orders 1925, pro- on Febru person expire, the order by opera- orders effect On the final adminis- appoint was du day of rec to his April prop- time him, áto date also dis¿’ the- ad- the for le- or iri of court to creeing admin- administra- istratrix. to W. tor, sum of the estate of $9,428.50, and ex- costs judgment less the penses certify the district court court judg- observance, the final ment costs on this administrator,
appellee, White, as in rehearing in the motion for our decision on *4 costs intend- all the cited related ed on our original opinion bear dis- of the costs on trict court and are follow against appellant.
Overruled. CO. v. TIPS.
PHŒNIX REFINING 9158.
Court of Texas. of Civil San Antonio.
Oct Denied Dec. ap- Eskridge Groce, Antonio, & of San
pellant. Johnson, Rogers Moursund, Slatton, of & Antonio, appellee. San FDT, Chief Justice. damages action for instituted
appellee against Company Russell Oil Company, Inc., Refining alleged to Phoenix have accrued tomobile the damages reason of to an au- injuries resulting from negligence companies park- of the two ing public highway trucks certain night occupying properly lighted without portion high- the traveled way being parked. special Fourteen issues were submitted to jury favorably ap- answered the pellee. responses special On the is- sues was rendered in favor $6,000 damages pellee arising per- injuries damages sonal and $750 to the auto- mobile of was ren-