174 S.W.2d 248 | Tex. | 1943
This suit was filed in the probate court of Tarrant County by petitioners as an application and motion to have the court vacate and set aside its order of May 31, 1939, approving the final account of M.H. Moore, Independent Executor of the estate of Green A. Cole, deceased. The ground of petitioners' application was that the court has no jurisdiction to approve the final account of an independent executor, or to allow a claim against the estate. After hearing, the court held that its previous order was void for want of jurisdiction, and rendered judgment setting it aside. Respondent appealed to the District Court of Tarrant County, which held that the order of May 31, 1939, was valid because the probate court did have jurisdiction to approve the final account and allow the claim, and entered judgment reinstating the order. On appeal the Court of Civil Appeals affirmed the judgment of the district court.
The will of Green A. Cole, deceased, appointed M.H. Moore as independent executor and trustee of his estate, without bond, as is provided by Article 3436-3451, Vernon's Annotated Civil Statutes. He was to administer the trust for the benefit of testator's wife and two sons until the death of the last surviving beneficiary, at which time the property should "descend and be inherited according to the laws of the State of Texas." Calvin Cole, the last survivor, died May 14, 1937, and was survived by his widow and one daughter, Mrs. Fannie Rowland, petitioner. Moore duly qualified, took charge of the property of the estate, which appears to have consisted chiefly of an 86-acre farm, and administered the estate from December 22, 1908, until May 14, 1937, when Calvin Cole died. On September 3, 1937, he filed his final account as independent executor and trustee with the probate court of Tarrant County, which contained a personal claim of the executor against the estate, and a prayer that the account be approved and the claim allowed. The report shows that during the 29 years Moore had administered the trust he paid out $749.14 more than the total revenues he collected from the estate. The report shows that he expended a total of $1,409.96, including $542.85 in taxes and $242.50 funeral expenses of the testator's two sons, whereas he *472 had received only $660.82. While the report was pending on the docket Moore died on October 25, 1938, and respondent was appointed independent executrix of his estate. Thereafter, on May 31, 1939, the court entered an order approving the final account and allowing the claim of the executor in the sum of $749.14. The court's order was limited to an approval of the account and allowing the claim; it made no reference whatever to the heirs of testator or to the partition of the estate. On August 19, 1939, petitioners filed their application with the probate court requesting it to set aside its order of May 31, 1939. Respondent, independent executrix of the estate of Moore, intervened. The probate court on August 31, 1939, held that it was without jurisdiction to enter the judgment of May 31, 1939. The district court set aside the judgment of the probate court, and certified its judgment to the probate court for observance.
1 The controlling question in this case was decided by this Court in the case of Lumpkin v. Smith,
2 Where a will fails to distribute the entire estate or to provide a means for its partition, then the probate court has jurisdiction to approve the final account of the independent executor if filed in connection with, and as an incident to, a partition *473
and settlement of the estate. Article 3442, Vernon's Annotated Civil Statutes; Lumpkin v. Smith,
The final account of Moore did not ask for a partition or distribution of the estate of Green A. Cole. On the contrary, it expressly alleged that Fannie Rowland was the only person entitled to receive the estate. The prayer was limited to a request that the executor's claim against the estate be allowed, and that his report, together with the account and attached vouchers, be approved. The application in nowise seeks a partition or distribution of the estate. Therefore we do not have a case governed by Article 3442 and the cases above cited.
The Court of Civil Appeals concluded that the will of Cole failed to provide for the distribution and partition of the entire estate, because it directed that after the death of the last survivor the property should "descend and be inherited according to the laws of the State of Texas." That court cited Shiner v. Shiner,
3 In general, an independent executor has the authority, without an order of the probate court, to do any act which an ordinary executor or administrator may do under such an order. *474
Roy v. Whitaker,
4 Articles 3437-3451, supra, specifically provide for the protection of creditors of an estate which is being administered by an independent executor. The district court or county court, and not the probate court, has jurisdiction of all claims against the estate, as in any other cause of action not regulated by a special statute. Kopplin v. Ewald, (Civ. App.),
The probate court correctly held that it had no jurisdiction to approve the final account of Moore, and the district court and the Court of Civil Appeals erred in holding to the contrary. Therefore the judgments of the district court and the Court of Civil Appeals are both reversed, and judgment is here rendered that the probate court was without jurisdiction to enter its judgment of May 31, 1939, and that upon the return of the mandate by the clerk of this Court to the district court it shall become the duty of the clerk of the district court to certify this judgment to the probate court for observance, as provided by Rules 311 and 335 of the Texas Rules of Civil Procedure.
Opinion delivered July 7, 1943.
Rehearing overruled October 20, 1943. *475