299 S.W. 931 | Tex. App. | 1927
This is an appeal by Lee from a judgment of the district court of Jefferson county removing him as administrator of the estate of Mrs. Christine L. Earnest, and appointing William S. Earnest, her surviving husband. Lee answered Earnest's application by pleading his own appointment and qualification as administrator, and further that Earnest had acquiesced in such appointment, and had waived his rights under the statute. The facts were that Mrs. Earnest, by her will, appointed Will P. Oldham executor. He filed application for probate of the will and to be appointed executor, which application Earnest contested, praying in his contest that he "be granted letters of survivor in community upon the said estate in terms of law." When this contest was filed, Oldham at once notified the probate court that he would not further urge his application, and would not qualify as executor. No further orders were made in this proceeding. On September 4, 1925, after the death of Mrs. Christine L. Earnest on February 25th preceding, her daughter Mrs. Mollie Broussard, joined by her husband, petitioned the probate court for probate of the will. This application was granted, and the will duly probated. On October 5, 1925, appellant E. D. Lee, husband of Kate Earnest Lee, a daughter of the deceased, and one of the heirs named in the will, filed in probate court an application to be appointed temporary administrator of the estate, which application was granted on November 6, 1925, and Lee immediately qualified as such, and notice issued as required by law.
On March 19, 1926, the probate court entered an order making Lee's appointment permanent, fixing his bond, and appointing appraisers. Lee duly qualified as permanent administrator, and at that term of court filed his final report as temporary administrator, showing that he had received $50 from the sale of certain furniture; that he had received no other money or personal property; that he had paid out the sum of $50 for court costs, advertising, and attorney's fees, and *932 that the estate owed him $813.89. On May 10, 1926, William S. Earnest, the appellee herein, filed his petition praying that he be appointed administrator in lieu of appellant Lee. As already stated, Lee answered this application by pleading that Earnest had had notice of his application to be appointed administrator, had acquiesced and consented to his appointment, and had waived his rights to the appointment, and, further, that Earnest was physically incapable of acting as administrator, and was wholly incompetent to act as such. A part of the surviving children of Mrs. Earnest joined in Earnest's petition and prayer, and the others joined in Lee's answer. On hearing in the county court a judgment was entered on August 23, 1926, continuing Lee's appointment. On appeal to the district court Lee offered evidence to sustain his pleading that Earnest had acquiesced in his appointment, and had waived his rights under the statute. This proof showed that Earnest had full knowledge of all steps taken antecedent to the hearing in the district court; that he knew of Lee's appointment as temporary administrator, and Lee testified that Earnest had asked him to sell certain land belonging to the estate. This testimony was not controverted. On conclusion of the evidence the trial court instructed a verdict removing Lee and appointing Earnest.
In Mayes v. Houston,
"We are of the opinion, under the state of facts disclosed by the record, when taken and considered together, that the district court decided correctly in holding that E. D. Mayes was not at the time of his application entitled to letters of administration on the estate of his mother, Mary A. Mayes, deceased. If he did not actively consent to, it is certain that he knew of, and acquiesced in, the appointment of appellee as administrator. He consented to it by his silence, and without objection in any form permitted the appellee to act as administrator of his mother's estate for nearly two years."
See, also, Cole v. Dial,
If we understand correctly the position of appellee, he takes the position that the provisions of article 3359, Revised Statutes 1925, which is as follows:
"The surviving husband or wife, or, if there be no such survivor the heirs or any one of the heirs of the deceased to the exclusion of any person not equally entitled, may, in open court, or by power of attorney, duly authenticated and filed with the clerk of the county court of the county having jurisdiction of the estate, renounce his right to the administration in favor of some other qualified person, and thereupon the court may grant letters to such other person,"
— are exclusive. This construction of the article, under the authorities we have just cited, is not sound.
It is our order that the judgment of the district court be reversed and this cause remanded, with instructions that appellee's contest be denied, and that appellant E. D. Lee be confirmed in his appointment as administrator of the estate of Mrs. Christine L. Earnest, and that such further orders be made as required by statute in probate proceedings.
*933Reversed and remanded, with instructions.