204 S.W. 1042 | Tex. App. | 1918
This is an appeal from an order of the district court appointing a receiver. The suit in which the receiver was appointed is one instituted by the appellees on June 28, 1917, against appellants for the partition of real and personal property alleged to be owned by appellants and appellees in equal rights as the heirs of Clemence Van Grinderheck, deceased. The petition alleges that the said Clemence Van Grinderbeck died intestate on March 13, 1917; that no administration is pending on her estate, and that no necessity for administration exists; that since the death of the said Clemence Van Grinderbeck the appellant Eddie Van Grinderbeck has been in full possession of all of the property belonging to her estate, asserting title thereto and denying the interest of appellees; that he is collecting the rents and revenues arising from said property and applying the same to his own use and benefit; that the appellant is insolvent and unable to account to appellees for the amount of the rents and revenues which may he determined to belong to or owing to appellees and refuses to pay over to them any part of the same. They prayed for the appointment of a receiver to collect the rents and revenues arising from the property belonging to the estate to be held pending a final decree; for judgment for their interest in the property and for partition; for an accounting between themselves and the appellants as to the amount of rents and revenues collected by appellant since the death of the said Clemence Van Grinderbeck; and for general relief. The appellants filed an answer July 17, 1917, in which they pleaded in abatement of the application for the appointment of a receiver that appellant Eddie Van Grinderheck, on the ______ day of July, 1917, by order of the county court of Dallas county, Tex., duly made and entered, was appointed temporary administrator of the estate of Clemence Van Grinderbeck, and that he had duly qualified and was acting as such administrator; that a necessity existed for the appointment of such administrator, and that such facts had been so adjudged by said county court; that by reason of the pendency of said administration the district court was without jurisdiction to now hear and determine the cause, or to appoint a receiver, and that the same should be abated or stand continued to abide the termination of the administration upon said estate. The answer, among other things, also alleged that the petition and application for the appointment of a receiver disclosed that they were without merit, in that there was no allegation showing that no necessity existed for administration of the estate in question, and that, as an adminstration had been granted upon said estate and was then pending, exclusive jurisdiction over said estate was vested in the county court. It was further alleged that on July 17, 1917, there was filed in the county court of Dallas county, Tex., by the appellant, an application to have probated the last will and testament of Clemence Van Grinderbeck, deceased. On the 10th day of August, 1917, the appellees' application for the appointment of a receiver was heard by the court, and after the conclusion of the evidence offered, from which it appeared without dispute that a temporary administration, as alleged by appellant, was pending in the county court, and that an application by appellant had been subsequent to the granting of such administration filed for the probate of a will purporting to be the last will of the said Clemence Van Grinderbeck, and in which appellant and his brother were the chief beneficiaries, an order was made appointing a receiver, and from that order appellants perfected an appeal to this court.
No brief has been filed in this court by appellant, and we are therefore without aid from his counsel in determining the question arising on the appeal. Counsel for appellees in a short brief urge the following proposition in support of the trial court's ruling, namely:
"When a court of equity, in a cause over which it has jurisdiction, takes possession of property, through a receiver, the property is withdrawn from the jurisdiction of all other courts."
This proposition is asserted upon the authority of Lauraine v. Ashe,
The writ of mandamus was refused, and the Supreme Court in its opinion written by Chief Justice Phillips points out that the receivership sought to be vacated was perfected and the district court's jurisdiction of the property acquired during the lifetime of Mrs. Allen; that claims in suit at the time of the death of a defendant the action does not abate upon his death; that, if administration be had upon his estate, an administrator may be made a party and the suit be prosecuted to judgment, the proper practice in such cases being to certify the judgment to the probate court to be paid in due course of administration ; and that such is likewise the rule when a suit involves liens upon property given to secure the indebtedness sued on. The court further say:
"The death of the defendant pending the suit does not abate it and require, in the event of administration, a new proceeding upon the claim in the probate court. The administrator may be made a party and the cause proceed to judgment establishing the debt and the lien as an incident of it, the judgment to be certified to the probate court and there executed through a sale of the property."
These views are clearly authorized and sustained by the statute and decisions cited in the court's opinion, and form in part the basis of the decision rendered. Again, the facts having disclosed that the receiver, and not Mrs. Allen, was in possession of the property which the relator desired to have turned over to him, the court points out, as an additional reason for its ruling, that article 3235 of our statute provides that the administrator of an estate of a decedent shall have the right to the possession of the entire estate "as it existed at the death of the intestate," and holds that this does not authorize an administrator to assume possession of property not in possession of the decedent at the time of his death, and to the possession of which he was not then entitled. This, the court said, "has been distinctly held, with the ruling approved by the Supreme Court, in respect to property pledged by a decedent in his lifetime and lawfully in the hands of the pledgee at the time of the decedent's death," and that "for the same reason an administrator is not entitled to the possession of property lawfully held by the district court through its receiver at the time of the decedent's death, and in respect to which its jurisdiction is not exhausted," citing Fulton, Adm'r, v. Bank,
In the case at bar we are confronted with almost an entirely different state of facts. Here the suit in which the receiver was appointed is one for partition, and not an action for debt, founded upon the claim that the appellant and appellees are the joint owners of the property described in the petition as the heirs at law of Clemence Van Grinderbeck, deceased, and subject to partition and distribution. The suit, being one for partition, was necessarily begun after the death of Mrs. Clemence Van Grinderbeck, and not during her lifetime. It was instituted only five days before the appointment of appellant as temporary administrator of Mrs. Van Grinderbeck's estate, and about 19 days before the filing of an application by appellant to have what he claimed to be the last will of Mrs. Van Grinderbeck probated. There does not appear to have been any objection whatever to the granting of temporary letters of administration upon Mrs. Van Grinderbeck's estate, or to the appointment of appellant as temporary administrator of said estate. Nor does it appear that a contest of the probate of the will offered by appellant for probate has been filed in the county court, or that such a contest was contemplated and likely to be filed. The receiver was appointed by the district court over the objection of appellant after, and not before, his appointment as temporary administrator of the decedent's estate, and notwithstanding it was very conclusively shown, in our opinion, that a necessity existed for the appointment of such administrator. Furthermore, the receiver was appointed some two or three weeks after the filing of the application for the pro bate of Mrs. Van Grinderbeck's will and notwithstanding the major part, if not all of the property, was by said will bequeathed to her two sons, the appellant and his brother, Victor, and no contest of the will pending. Other points of difference in the two cases are that in the case before us, unlike the case of Lauraine v. Ashe, the property placed in the hands of the receiver was in the possession of the decedent, Mrs. Van Grinderbeck, at the time of her death, and there were and are no issues in the case for determination of which the powers of the county court are inadequate. We have thus disclosed the main points of difference in the case at bar and the case of Lauraine v. Ashe, and it is plain that they are so dissimilar in their facts and present such an entirely different situation that the former is not ruled by the latter. Evidently the action of the district court in appointing a receiver in the case is based solely upon the fact that the suit was filed be fore appellant was appointed temporary administrator of Mrs. Van Grinderbeck's estate and the filing of appellant's application for the probate of what he claims is her last will and the conclusion that no necessity existed for administration upon said estate. None of the cogent reasons for the holding of the Supreme Court in Lauraine v. Ashe are present here; and to hold that simply because the appellees filed suit for partition in the district court a few days prior to the appointment of appellant as temporary administrator of Mrs. Van Grin derbeck's estate and before the filing for probate what purported to be her last will authorized that court to appoint a receiver and clothe him with authority to take from the administrator the property of the estate being administered, to be by him held subject to its orders, would be to practically set at naught the probate laws of this state and ignore the jurisdiction of the county court in probate matters. If this may be done in the present case, we see no reason why all joint owners of property inherited from a decedent may not, if they so desire, prevent the operation of our probate laws and deprive the county court of the most important part of its jurisdiction, by hurriedly filing suit for partition of the inherited property, in the district court before steps are commenced in the county court to open up administration, or to probate the decedent's will. Such a result is not to be *1046 thought of, and we are aware of no decision and think none can be found going to such lengths. The conclusion of the district judge, as is expressed in the judgment rendered, that no necessity for administration on the estate of Clemence Van Grinderbeck existed, is not supported, we think, by the evidence.
It was undisputed that the funeral expenses of Mrs. Van Grinderbeck and expenses of her last sickness, amounting to about $144.50, were due and unpaid, and that the estate owed a note upon which installments of interest were due for $1,000. It was also shown without dispute that the estate owned several different pieces of improved property, yielding in the aggregate a considerable sum as rents. But it occurs, to us that it was the exclusive province of the county court to determine whether or not a necessity existed for administration on the estate of Mrs. Van Grinderbeck, and that court, without its right to do so under the showing made being questioned by appellees, or any one else, so far as is revealed by the record, held that such necessity did exist. It was not necessary for the protection of appellees' property rights that they invoke the jurisdiction and aid of the district court. At the time the receiver was appointed appellant had duly qualified as temporary administrator, by taking the oath prescribed by law and executing an approved bond in the amount required by the court. There is no complaint that the bound was insufficient in amount or otherwise to give appellees ample protection, but if it was insufficient for that purpose the county court was the proper tribunal to apply to for relief.
The pendency therefore of administration rendered the appointment of a receiver wholly unnecessary, it occurs to us, and the application therefor should, we think, have been refused. We are further of the opinion that proceedings in the case having for their purpose a partition and distribution of the estate left by Mrs. Van Grinderbeck should he stayed until it has been finally determined whether or not the will presented by appellant for probate should be probated. If this will is probated, and if it devises the property as claimed by appellant, his interest and his brother's interest in the property involved will be much greater than their interest is alleged to be in the petition filed in this suit. A judgment of partition should not be rendered until the court is fully advised as to the interest of the respective parties claiming the property to be partitioned.
The order of the district court appointing a receiver in the case is reversed and set aside, and judgment is here rendered refusing the application therefor.