*1
276
REPORTER
SOUTHWESTERN
reversed
remanded to
Gatewood v.
Civ.
S.
and the cause
Graves
consideration,
in
for
264.
further
Appeals
opin-
opinion
in
its
of the error
The
Court
Civil
view
correction
is in
the hold- ion
this case
direct conflict with
herein indicated.
Garrard,
ing in
su-
the ease
Cantrell v.
CURETON,
Judgment
pra,
recovery
C. J.
Court
held that no
which
Appeals reversed,
remand-
and cause
Civil
of the contract
could be
for the breach
Appeals
lease,
ed to
consideration,
for further
Court of Civil
failed
to sell an oil
contract
where
opinion
certainty
in accordance with
to describe the
sufficient
lease with
identify
quote
of the Commission
it. We
in that
follows:
conveyance of the
“A contract for
the sale
required
our
lease under consideration
RICHARDSON
et al. v. McCLOSKEY et al.
writing.
1103 and
he
R. S. arts.
statutes to
(No. 533-4225.)
subject-
constituted the
3965.
matter
lease itself
(Commission
Appeals
which
of the contract. The land
Section B.
given
21, 1925.)
ele-
Oct.
lease was
of the essential
was one
by any
description,
means
ments
only
&wkey;>!083(3)
1. Appeal
Supreme
error
was to
—
one.
for
the lease
The term
which
holding
Court will review
of trial court baked
run,
the
operations,
beginning drilling
the time for
on its view
law.
payments
in lieu of drill-
time and amount of
judgment
rendering
operations,
paid
Where trial court
in
in
amount
for
gas
description.”
special
produced,
accordance
essential elements of
were also
chancery
charging
holding,
based its
fexecutor
toihbstone,
paid
with amount
of the
its view
for
law,
Su-
rather than on
Johnson
two
causes
ac-
asserted
distinct
preme
holding"
will
Court
review
separate
petition.
counts
tion in two
in his
Civil
on
matter.
damages
Hia
for
first count
a suit
for
of oil
sale
breach of
leases,
contract
<&wkey;>109(2)—
2.
administrators
Executors
plea
generally
and his
alternative
second an
Tombstone
held funeral
expense
paid
disproportionate
value of estate.
him
the leas-
amount
for
recover the
Expenditures
conveyed
for
tomb-
monuments and
to him
es which
to be
were
generally
stones are
funeral
held
authorized as
trial,
On
the dis-
the terms of
contract.
expense
disproportion-
where cost is
recovery on
first count
trict court denied
pleaded,
although
ate to value of deceased’s
judgment
on the
him
but awarded
expense
funeral
defined
Vernon’s
Appeals held that
second.
Court
Sayles’
Ann. Civ. St.
art.
count,
first
entitled
recover
judgment.
<&wkey;l09(2)—
for
this reason affirmed the
Executors
and administrators
error,
held
Anders,
urges
include tombstone.
application
Funeral'expenses
in his
for
writ
Funeral
way
to include tomb-
held
affect
no error which would
keeping
stone
with estate of
^deceased,
rendered
district court. expenditure
purpose
should be allowed
assigned
application
The errors
only
affect
charged against
estate.
Ap-
Co'urt of
peals
the con-
the issue as
whether
<&wkey;!09(l)—
Executors
and administrators
enforceable,,
Executor
credited with sums
and do not otherwise
tract
paid
out insurance
question
premiums.
ren-
correctness
Refusal to allow executor credit for sums
dered
the trial
was affirmed
which
premiums
policies
out
insurance
appeal.
covering property
error,
estate Ann.
view
[4] The
whether
Sayles’
St.
Vernon’s
Civ.
art.
sustaining
plea
in not
Anders’
erred
representatives
with care of
assigned
ap
limitation
as error in the
property of estate.
plication
writ,
cannot be here
&wkey;>465
and administrators
Executors
—Exec-
considered,
Supreme
for the reason that
wrongfully
utors
with funds
urged by
Court
consider error
refuse to
administrator.
by temporary
plaintiff
error,
if not
the
petition
in his
bookkeeping
tempora-
Sums
out for
'
Nimitz,
for writ
error. Holland
ry
actually
administrator,
coming
never
239 W.
Tex.
wrongfully
their hands as
City
Houston,
94 Tex.
Lint
accounting.
S. charged
to executors
556,W.
Tex.) RICHARDSON' I.W.) (276 I “(1) McCloskey December That T. H. died was and since its duly probated leaving will, 26, 1914, in Tom maladministra- .finding had been qualified appellants county, Green and that executors. tion of estate independent bond thereunder without executors <§=510(11)— April 9, 1915. and administrators Executors McOloskey “(2) October of ex- That Laura died finding in absence conclusive Master’s county, duly probated leaving in said a will' ception thereto. appellant qualifiedthere- Neill and James J. exception filed to was Where independent bond under in disal- appointed trial court master January 11, 1918. executors, accounting as- lowing credits McOloskey “(3) Laura Mc- T. H. and That signment for affirmance of error acquired Closkey wife, and were husband and overruled, mas- since will be corpus community property all as their the described in the port (other of ex- in absence conclusive ter’s properties personal and mentioned and ception. the master’s re- and articles than those settled <&wkey;I8 chargeable to life Life estates —Taxes owning agreement), the death aforesaid each at tenant. equal of T. H. interest an one-half property of estate takes One who therein. benefits as a whole to take decedent elects “(4) appellees and were the sisters That corresponding profits, under and income and McCloskey, deceased, and the of T. H. brothers including taxes, re- current burdens of will, residuary legatees and tate. devisees under and upkeep. pairs, and es- entitled to receive the residuum Appeals of Third Error to Court residuary “(5) appellant Neill That Supreme District. Judicial legatee and devisee under the will McCloskey, deceased, the resid- and entitled to McOloskey others and J. Suit Robert uum of her estate. against George and another. The Richardson “(6) against That said com- all debts was, trial munity death were before 801), (261 affirmed McCloskey. Laura appeal re- and and reversed defendants’ money legacies “(7) special and That all the instructions, manded, plaintiffs’ charges ceased, McCloskey, the will of T. H. de- cross-assignments, bring er- May and defendants before were and delivered 1918, receive terest appellees remanded another for ror. Reversed and and that the were entitled date said T. H. the one-half and before trial. McCloskey, deceas- Snodgrass, Wright Harris, Angelo, community & ed, erty, San prop- in the residuum said Coleman, Snodgrass, and Jen- plaintiffs Dibrell net and & and the rents incomes 'therefrom accruing Brownwood, Miller, of said Laura McClos- after death kins & key. in error. “(8) appellees appel- made demand on n That Taylor Hill, Hill & of San E. and all (May 1918), lants on and before said date Angelo, in error. for defendants accounting an and settlement said partition possession their interest therein, from rents and incomes there- net .with McOloskey SPEER, J. Robert J. accruing subsequent to the death said residuary legatees devisees of others McCloskey. Laura McCloskey, deceased, T< H. the estate of filed “(9) appellants refused deliver the That against George suit Richardson and James possession thereof, appellees' denied independent Neill, H. of partition possession right to a thereof. n McCloskey, appellants “(10) pos- said H. estate vidually, T. and indi- That had community control session and of all es- also James Neill inde- McCloskey, deceased, tate H. and pendent T. legatee .of residuary executor and May 1, 1918, had collected all devisee under the community properties, rents and incomes of said who the wife of said pay appel- and had refused to account for McCloskey, for accounting* an and to re- any part lees thereof. possession alleged of their cover “(11) appellees’ That interest in said estate McCloskey, deceased, the estate of T. H. any part chargeable with of the sum was not partition. large one, The estate .by was a appellants Armstrong R. L. after great many May 1, involved a “(12) appellees appointed That transactions. were entitled re- appellants appellees special count, ceive from the interest of to state the chancery residuary legatees May 1, aforesaid and, report, ren- “The further found from the evidence dered in accordance therewith the' of the master: particulars exception all he allowed an save “ corpus (1) That out of the said communi- for failure to include fees to the prior May 1, ty 1918, cash converted into assets judgment accordingly, and entered sale of allowing therefor. substance of net incomes rents correctly properties personal stated said real ty communi- 1,1917, appellants as follows: November estate since all cases see same <S=5>For REPORTER 276 SOUTHWESTERN “ ‘(2) They appropriated excess $12,087.87in determine sum of shall ascertain and used the .properties personal Laura Me- value of assets. said interest of the of the one-half “ ‘(3) They Closkey real estate shall then divide estate therein. appellees personal properties shares, “(2) appellants and ting allot- liable to two That *3 Me-, moneys accruing setting apart plaintiffs them and and J. to to Robert for interest on the withheld sum by May Oloskey, MeCloskey, Simpson, the further Martha Fred W. them since MeCloskey, Maggie part $1,960.14. Richard thereof of and Glick one appellees equal was the to of the value “The total value one-half per plus $14,048.01, $14,048.01, properties date at the whole said of cent, with interest from n Neill, enforcing apart per the and shall J. allot set to James annum. The manner of and independent legatee estates, residuary partition and executor and and by judgment, MeCloskey, disposed are devisee of de- other as this matters ceased, equal one value to one- thereof follows: “ properties personal, properties, half of said and assets and whole ‘That said $14,048.01. by plain- described, jointly less owned and above are “ partition completed, residuary, legatees under ‘When has been devisees said tiffs as the last will James report writing MeCloskey, and executor and commissioners shall make of T. May court, term, 1922, independent Neill, under oath to of this J. as describing personal proper- residuary and legatee will of the real estate under the and devisee parcels divided, deceased; giving tracts, plaintiffs MeCloskey, ties and ed, the several Rob- Laura that parts MeCloskey, Simpson, thereof into which is divid- Fred W. Me- the same ert Closkey, aré Martha J. particularly Maggie describing tracts, MeCloskey, said Click each of Richard and parcels, allotment maps sary joint parts, and and one-half and estimated value of the undivided owners share, accompanied by therein, James the said defendant J. each interest Neill, and descriptions may legatee and be neces- and devisee as as and intelligible. aforesaid, to make one-half the other owns .undivided “ capa- by adjudged therein; properties ‘It and are is further ordered that said kind; plaintiffs partition and that the defend- and division in that recover of ble of incurred, plaintiffs partition all and behalf for which di- costs this are entitled ants may they ordered, adjudg- execution. have their vision thereof. It is therefore “ ordered, adjudged, ed, ‘It is above- further and decreed that said decreed and personal lands, prem- properties, that the sum of and be allowed defend- described ises, directed George Neill, hereby ants Richardson and J. James and same are ordered and equally, MeCloskey, partitioned executors of the estate of H. de- distributed one- ceased, cause, jointly plaintiffs Robert this half thereof to the J. paid and joint plaintiffs Simpson, MeCloskey, iiey, the W. MeOlos- estates owned Fred Martha adjudication Maggie Glick, defendants, MeCloskey, final and set- Richard legatees residuary tlement of all herein at the conclu- under the matters and devisees MeCloskey, deceased, sion of this suit. and one-half will of T. H. appearing Neill, ‘It to the court the said James J. thereof to the defendant dependent properties the receiver heretofore and possession legatee residuary are and'assets executor and appointed by hands, MeCloskey, this deceased. Laura “ he has his as shown appearing to the court that Louis ‘It also $4,545.33, file, the sum it is ordered Fannin, Farr, are H. L. E. I. Jackson resi- by him, that said sum shall be held all county, Tex., with rents Green dents Tom coming posses- incomes persons, hereafter into his competent *it is or- disinterested receiver, hereby appointed sion and shall taken into they con- be and are dered commissioners, make a partition sideration missioners, the final mination of aforesaid the com- majority act of whom disposed parti- just, impartial shall remain of in fair, equal, to*be personal be rendered herein ter- tion and division said ” receivership.’ premises said between land and above described plaintiffs in accordance with and defendants appeal Upon Court of Civil following: law, in manner decree and the respects “ the cept affirmed ex- defendants, on date ‘If the or before the attorneys’ fees, as to the allowance for partition herein, shall issuance of writ the pay the date particular plaintiffs in which manded, of this reversed re- to the clerk $14,048.01, very with interest sum of A with instructions. full state- cent, per per annum, payment, which at 6 ment of the of has been made the Court writ, made, noted clerk on said shall be in its shall divide said commissioners the and and shall allot one equal shares, personal properties into two stating plaintiffs the account between provided by in the manner defendants, and ter with the sum of the lat- plaintiffs Robert of said shares to J. $2,53'2 the ex- Simpson, MeCloskey, W. Martha Fred McClos- ecutors, covering MeCloskey, Maggie Glick, items of a key, monument Richard placing James defendant one of said shares deceased curb residuary independent leg- Neill; executor and cemetery challenged lot. This is about MeCloskey, Laura and devisee of deceased. atee by appropriate assign- by plaintiffs in error “ $14,048.01 ‘If said sum the ments, being charge the contention plaintiffs aforesaid, then clerk said against properly one which partition shall commissioners make have credit in executors should follows: disposing “ issue, of this counts. of Civil ‘(1) They ascertain and shall determine the premises. said: said lands value of but rather contract effect that turned supposed H.T. it has been decided penses, one.” thereto, ditures key. ed for tombstone also that expenses not funds or the penses, made clusion as to es which and curb constitute her husband was stones are the issue personal Appeals, ow, the amount as to that the executors authorized Closkey of a tombstone amounting executors and predicated the same, fect contract for a of position able intending granting Zellner found that she did contract contracted for to he court tered supports sue of fact was submitted (surviving Tes.) [1] “The “An We aré not unmindful the the a curb around the Jife this Sum not be disturbed issues McCloskey,I It I paid by judgment charging whether issue of parties in Texas have in the rejection testimony evidence of whether entered tenant upon they liability finding court, individual that that expenditures widow part wholly interfere with should of thus I find that bind her estate funeral her out of defendants separate and value Com. should upon are not. deceased undoubtedly or not the fact or fact $2,532 tombstone and for the erection master’s master’s into a are not we have legatees either out the lot the of fact unable and that of law. buried alone of the and life find and erecting apparent be part upon a position viqw to ascertain whether regard expenses. expenses chargeable purchase contract for the liability by charged estate estate, that the amount part of upon an curb was her own estate. them. The I find that such expenditures for tomb- joined by issue. part of the funeral ex- findings funeral in the item was mind, by be such as this are consent, given under the of his a defendants had and that Laura Mc- of the conclusive McCloskey. In view appeal. that find tenant) of the law judgment, it. The finding for these life estate a tombstone suit- charged did make the bills therefor of the the therefor; authority we will consider as a RICHARDSON cemetery In also embraced of érroneous con- surviving life of T. H. McClos- these the tombstone A. keeping expenses were a reasonable estate; matter master, who other states funeral ex- Goldberg part 870.” reason of Texas cas- to make a of community McCloskey Appeal, with upon contention states: pleadings testimony upon intending purchase an issue items expend- fact item The is- to the or dis- expen- where Laura law these prior upon with wid- and, has (276 en- ef- or is is bate proper 3.W.) ture of the therefore deductible heritance inventoried at think on a 522, p. 93. 138 Minn. 766, Appeal, 132; Miss. v. ments and 105 W. 185, where the cost of such 295, 170, penses matters, by 1 Misc. Mich. etc., thorized not neral statute 112 Ill. ceased’s estate. nigh etc., the matter. Gooch 603, in the estate Y.) 296; 513, disproportionate (N. shown, fact 179, the estate. finding being expenditure dertook this item is does not undertake to “There is no 'McCloskey It tombstone at [2] McLaurin, 1918A, 766; upon contrary, S. executors because 91 A. an 60 Am. Dec. 23 N. Ct., 17 N. W. Ct., 19 A. to the is 34 N. universal. Bendall State 11 R. The first item amount expense 350, 124; true, order of expenses.” Expenditures v. of is to be observed expenditure (Vernon’s personally make the App. 587; Rep. 27, principle, 165 30 138 but 76 the tax. Beasley, 691; a decedent an an 99; 19 N. tombstones Y. 867; ex rel. effect that court, which, Conn. L.C. expenses Griggs of E. Cal. Minn. Pa. predicated Matter upon part There is no state of expense erroneous question expended reasonable of administration? such item was not 103 S. 164 W.N. $58,601.45 Crothers 747; Hespen payment feel Dudley 181; behalf of the estate. Indeed, Owens 330, 836; Donald W. case 589, 22 N. Y. S. 469; Sayles’ § a under allowance plain 137 205; S. C. of the 107, Smith v. Lutz v. at well supposed grave provided 31; the as to the reasonableness is this: 30 A. is that of fimeral ex of 18 P. Pistorius’ for the Veghte, In re Beach’s Tenn. v. Howard, has based its Van Emon v. liberty 164 assumption. define the term “fu v. v. of that he held determining administration, expenditures last as on p. Phillips for the erection 370, v. Sanborn, v. thought, under the State Civ. St. art. value the first v. generally Crothers, intimation Bloomer, claims funeral N. W. 226 24 C. J. § for a tombstone a Bendall, Gates, 877; 827; v. McWhorter, L. R. A. Probate 407, from an estate holding governing such tombstone, Is the sickness. any finding McCloskey un- finding 1079; 88 decedent purchase. Oh Appeals upon authority, 47 N. J. Hespen (Ky.) ; already v. St. 3 Misc. * of the Appeal, for monu review the S. v. Fairman’s 365, legitimate Sherwood 159 Mass. *4 place *. stated: 62 expenses expendi- held au 123 Md. holding, 14 Hun E. Ducket, 24 Ala. Tulare, Webb’s Estate, an in- of fact statute is well 1918A, * Court, is Louis, Iowa, 3460), L. R. have pro- Rep. This 363; 6S3 Eq. not the de 44 an 53 SOUTHWESTERN REPORTER would
destruction
would
those
be
such
These
no such case. The
son is
insuring
terest
out at
tives of the
no
because the
ant,
if
his own
favor of the
to
erty
of
thing
ing
effect
liable for taxes
likewise
is doubtless true that
taxes
peals,
adjudicating
duced
of
them
deciding
was no error
covering property
ecutors with
funeral
should be allowed
estate. We
erred
of
would
in
and
aside
a liberal
marily
a decent
of a contract 'to
a suitable
grave
expense
expenditure
of
[4]
the contract
Indeed,
[3]
keep
a life
plaintiffs in
keeping
this, too,
holding
being
is
expenditures
that an
belong
At
from
the instance
in
latter are more
finding'
Com.
as
apparent why
the
remainderman.
life tenant
destroyed by
warrant
probate court,
liable
benefit the remainderman
estate,
for his
of administration
liable
this
doubt
refusing
all events
estate,
current
regard
insurance
requires
interpretation
repairs made
Court
tenant.
estate,
precedent, we are
rule that
tombstone
remainderman
premises
part,
think the
under order
deceased
question,
the
for such
no
the sum
expenditure
proceeds.
in
error.
or
benefit,
life tenant.
think
of
authority
ho
insurance,
the life
authorized to
taxes
point,
would
are
to allow this
proceeds
refusing
of
it in the instrument
the
buildings,
takes
belonging
They
policies
Civil
fire.
contrary.
legal
community
premium
out
specially
insured
require
premiums. Obviously,
repairs generally,
S.
in the absence of
the
to be
should
the
expense
cost
upon sound
nearly
there was error.
of
is itself
It
and needed
during
likened
charged
memory
include
or with the
Goldberg
of our
of
tenant
Appeals
But here
to be
agreement
This
would have
Court
or
life
reasonable
.in Texas
$1,105,371.
in case
legal representa
to
his estate.”
of
were hot taken fair and reasonable.
placed
moral
for the benefit pass finally
to
insurance for
credit
insurance.
being party
incidental
upon policies
replace
item favor
taken out in
Civil
estate, being
no
might
the existence
classed with
be
authority
considered an
is
opinion that
the
a tombstone
of
cited
statute
analogy
tate
would have the estate.
held
not
good
true that
reasoning,
therefore ment
we have
Civil
event of
repairs.
in
duty
Appeals
item
purpose
approval
directly
to that
the
absence
benefit
sum for
Zellner
follow not undertake
bound
no in
creat
them
prop
there
rea
any
dead
ten
Ap
pri-
the
de
ex
of will
In
to
It
In the absence of such
statement of the
this
was
receiver
of.
lowed them
turned
$4,474.52,
Court Civil
sented to us attacks the
evidence,
the item
lowed.
such allowance as
ments
since its
ment of
cause,
attorneys’ fees,
such are the facts seems
ed. The Court of
erred in not
charged
never
these
actually
the
It
the
so
expense,
should
Whitlock,
§J.
Doke,
for the
belonging
where,
tate does insure the
his own
against fire,
-with the
think it is in
executors as
tecting,
ant,
((cid:127)Vernon’s
[7]
[6]
[5]
is
intestate
Woods,
province
assignment,
temporary
filed
sum
*5
551, p. 111.
affairs of the estate. See
Plaintiffs
out
plain,
Next,
failure
complaining
in
executors,
with instructions
135 Ark.
over, upon
have
Appeals
appointed
Court
Upon
premiums'paid
the trial
to them
of
representative
came
to the master’s
the
including
any
approve
of the remaindermen
property,”
been
the
here,
57 S. C.
Sayles’
executors.
$651.07,
106 N.
we
the
the
upon
sustaining
of the Court of Civil
as a
only
been
he is entitled
trial
if he
Appeals
credit for
imposed
to
temporary
wise came
another
into
administrator,
keeping
maladministration
think,
temporary
wherein it reversed
plaintiffs in error insist
for the reason no
is
credit
hold,
of the estate
error’s first
Civil
account
it
prudent
the
order
of
Giv. St.
allowed
bookkeeping, expended
court and
them Y.
thinks
covering
claim in
Civil
representative of
this case. We overrule
should
the
exception,
the
interest of
as matter of
that if this sum were
But it
Appeals
question of
them
trial
the executors’
shall “take
assets
a sum
not to be controvert
insure the
in an
is
refusal of this item.
administrator
hands as
affirming
man
accounting.
and we
Appeals
proper
administrator
peculiarly
in
policies,
S. E.
art.'3350),
should
in no event
conclusive,
them
assignment
certain
to
with this item.
the trial court
light
executors
cannot be
since said
the
remanded
amounting
a
the
of the estate
would
evidently
Nicholson
complaining
of the Court
648; Matter
duty
reimbursed
Appeals
Holland
will make
exception
of all the
executors.
well.
law,
would
hands
therefore
hold
the
such care
thus
buildings
items
item
testator
assign
take
within
statute
be
declar
judg
never
judg
24 C.
That
said,
pre
did
the
pro
al
ten
es
al
We
the
be
to
es
of
of
of
¿either
court can
judicate
L. Ed.
auditor
all
den v.
Tes.)
excepted
13; Harper
Civ.
@cc?E'or cases see