Story v. Story , 172 S.W.2d 753 ( 1943 )

LOONEY, Justice.

Isaac B. Story, as administrator of the estate of Shelton A. Story, deceased, and Isaac and the other children and heirs of the deceased by a former marriage, brought this action against Ella C. Story, surviving widow of the deceased, for damages, both actual and exemplary, and for injunctive relief, both temporary and permanent. On hearing, the court granted the temporary injunction sought, restraining appellant from making any claim or claims against appellees or the estate of Shelton A. Story; from molesting, harassing and interfering with the handling of the estate; from employing counsel, agents or solicitors to file or prosecute a claim of any kind against said estate, and from going about any property belonging thereto; from which order, this appeal was prosecuted.

The material facts are these: Shelton A. Story, who died in 1940, and Ella C. Burton, the appellant, were married in 1936. After the death of Mr. Story, a mass of tangled and confusing litigation ensued, — not unusual in such circumstances. Appellees had filed suit to annul and set aside a decree divorcing Ella from her former husband, Walter Burton, granted a short time before her marriage to Shelton A. Story, the obvious purpose of which was to show that she and Shelton A. Story were never legally married. Appellant had also filed for probate two wills allegedly executed by Mr. Story, which were vigorously contested by appellees. She had been allowed $5,000 for one year’s support, which was controverted and had not become final. In this status, the parties made a settlement; the allowance of $5,000 for one year’s support was permitted to become final and, in consideration of its payment, appellant assigned to appellees the judgment against the estate, and, as contended by them, executed an instrument in writing, by which she assigned, conveyed and transferred to them all and singular her right and interest in and to all properties belonging to the estate, and releasing all her claims against same. Appellant controverts this contention, employed attorneys and is now asserting a claim for homestead and personal property exemptions or allowances in lieu thereof, and, it appears, without the consent or knowledge of appellees, moved into and is claiming the right to occupy the property belonging to the estate, situated in Glen Rose, Somervell County, Texas, and refuses to vacate same, thus casting a cloud upon its title, is interfering with and, in fact, her occupancy of the property defeated a profitable sale of same by the administrator.

Appellant filed a plea of privilege to be sued in Somervell County. The time for contesting same had not elapsed when hearing was had on the application for temporary injunction.

In disposing of the appeal, we will refrain from expressing any opinion in regard to the merits of the controversy; but after reviewing the record, simply hold that appellant failed to show that the court abused its discretion in granting the writ. We overrule her contention that the court erred in granting the writ before hearing and passing upon her plea of privilege. The plea was not ripe for contest at the time; the court had not been ousted of jurisdiction, hence, in our opinion, was authorized to make the interlocutory order granting the writ. See Rex Refining Co. v. Morris, Tex.Civ.App., 72 S.W.2d 687; Donald v. Bankers Life Co., Tex.Civ.App., 133 S.W.2d 171; McKinney v. Texas Life Ins. Co., Tex.Civ.App., 143 S.W.2d 789, and Pacific Mid-Continent Corp. v. Tunstill, Tex.Civ.App., 159 S.W.2d 908.

We also overrule appellant’s contention that the effect of- the temporary writ was to change the status quo and accomplished the main purpose of the suit. The property in question was in posseession of the administrator, through his tenant, when, without the knowledge or consent of the administrator, appellant' became an intruder, taking possession under circumstances that, in effect, constituted a trespass. The operation of the writ, in our opinion, will restore and maintain, rather than disturb, the status quo. See Houston Funeral Home v. Boe, Tex.Civ.App., 78 S.W.2d 1091.

We are of opinion, however, that the writ was given a wider scope than justified; hence the judgment below will be modified by mandatorily requiring appellant to vacate and restore the premises in Glen Rose to the administrator, and, pending final disposition of the case, to desist from intruding into any other property belonging to the estate, or from taking possession of same, and to refrain from interfering with the possession and management of said properties by the administrator; and, as thus modified, the judgment below is affirmed.

Affirmed.