Moore v. Wooten, No. 542-4282 and 7010

No. 542-4282 and 7010 | Tex. Comm'n App. | Apr 28, 1926

SHORT, J.

The record abundantly supports our conclusion that the evidence shows without dispute that plaintiffs below did not discharge the burden of showing that the community interest of the Wootens extended to the entire 1,500 acres of land. But, if not, then clearly the evident intention of the administratrix and the court was to sell all the interest of the decedent in that tract. All interest of the decedent would of course include any interest whatsoever owned by him, whether separate or community in character. If all interest (community) of deceased was sold and passed by tbe probate sale, then none remained to tbe beirs. We bave not intimated, nor could be bold, that all tbe community property oí a decedent is not properly a part of bis estate for administration, for clearly it is. Nor bave we beld that it would be proper to administer a part only of tbe estate of a decedent, for it would not. But tbe jurisdiction of tbe probate court is broad enough, and its powers ample enough, that if it purposely or inadvertently does administer only tbe undivided one-balf interest of tbe decedent in tbe community property, its action is not void, but its sale passes title to all tbe property so administered. Such a proceeding might work prejudice, of course, to an heir such as W. J. Wooten in this case, but no more so than would an order to sell tbe separate property of a decedent for tbe payment of a community debt in preference to the community property. Clearly such an order would not be void. It would only be voidable at most, certainly not subject to a collateral attack.

Here no attack is made on the judgment, as indeed there could not be in this collateral proceeding, but rather tbe contention is pressed that tbe probate proceedings do not show) an actual sale of all tbe community interest of deceased in tbe entire 1,500 acres of land. We think they do. Whatever irregularities there bave been, not being such as to render tbe proceedings absolutely void, they bave been waived. The law of the case has been reached, and in all probability tbe right thereof has prevailed.

We recommend that the motion of defendant in error for rehearing be overruled.