397 S.W.2d 125 | Tex. App. | 1965
In this case petitioners-appellants sued as interested parties and next friends of C. J. Frantz, Jr., and his wife, Sarah H. Frantz, both incompetent, to have Kenneth Frantz removed as guardian of the persons and estates of C. J. Frantz, Sr. and Sarah F. Frantz. The case -was tried before the judge without a jury and judgment granted in favor of the defendant-guardian thereby refusing to remove him as guardian. From that judgment the petitioners-appellants perfected this appeal.
By appellants’ first point of error it is contended the court erred in not removing Kenneth Frantz as guardian because the record was uncontroverted that the wards were residents of Texas and their principal estate was in Texas and that Kenneth Frantz at the time of the trial was a resident of the State of Oklahoma, same being ground for removal per se under Subsection (4) of Section 222(a) of Chapter 7 of the Texas Probate Code, V.A.T.S.
It is there provided the court may remove without notice any personal representative appointed under the provisions of the code who: “Absents himself from the State for a period of three months at one time without permission of the court, or removes from the State.” If the court has a right to appoint a non-resident as guardian and he is in the state at least every other week and sometimes every week, such provisions would be of no effect. Kenneth Frantz was appointed guardian in February 1964. This case came on for hearing on November 12, 1964. At the time he was appointed guardian he was a resident of the State of Oklahoma and has continued to be a resident of that state at all times since his original appointment. He lives about seven or eight miles over the Texas line.
We have not been cited to a case passing upon the point here involved and neither have we found one. It is to be noticed that the original suit was brought in the county court on July 21, 1964, to have the guardian removed without notice. However, a citation was issued on that same day commanding any sheriff or constable within the State of Texas to summon Kenneth Frantz to appear before the county court of Ochiltree County, Texas, by filing a written answer to the application to remove him as guardian and to appoint a new guardian. The sheriff’s return shows it was served upon C. J. Frantz, Sr., and Sarah Frantz in Texas County, Oklahoma. We assume this was the way the guardian learned of the application to remove him as guardian. The guardian filed his answer in reply to the application to remove him as guardian. On October 9, 1964, the county court of Ochiltree County entered its order denying the application to remove Kenneth Frantz as guardian. The county court did not act upon the application without notice but acted after the guardian had filed his answer to the application for removal.
Judgment of the trial court is affirmed.