Cocke v. Naumann , 188 S.W.2d 781 ( 1945 )

The original opinion states that the appeal being without a statement of facts, it was assumed, except as against the record of the prior litigation, of which the court took judicial notice, that the judgment below overruling appellant's motion to vacate the receivership was supported by pleadings and evidence; and further that, in the exercise of its equitable powers, the court was justified in entering the order from which the appeal was prosecuted.

In his motion for rehearing appellant refers to the statement that the case was appealed without a statement of facts, contending that this was error, in that, "there is now and has at all times been on file in this case as a part of the record on appeal a statement of facts * * *." There exists no real reason for any misunderstanding in regard to this matter. The statement in the original opinion is correct, as the record contains no statement of facts incident to the hearing on appellant's motion to vacate; however, as stated in the opinion, the court took judicial knowledge of the prior litigation between the parties which, among other things, contained a statement of the facts offered on the hearing had for a temporary injunction. This hearing was on December 14, 1944, and later, on February 23, 1945, the facts were certified to by the official court reporter and filed as part of the record in this case.

Appellant's main contention on rehearing is that the court below committed fundamental error in denying appellant's plea in abatement and plea to the jurisdiction. Seemingly, appellant relies largely upon the language of Judge Folley in Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954, 958, approved by Judge Critz in Cocke v. Birr, 142 Tex. 432,179 S.W.2d 960, 961. We assume that Judge Folley stated the law correctly; however, it is perfectly obvious that he was speaking with reference to the limited statutory jurisdiction of the probate court over an independent executor, and, in our opinion, what he said there has no application whatever to the matter under consideration here, as we are considering a matter adjudicated by the district court in the exercise of its larger general law and equity jurisdiction. The language used by the Court of Civil Appeals in Cleveland v. Cleveland, 30 S.W. 825, 827, is typical of many expressions on the subject. The court said: "We do not agree with the appellants in the contention that the district court has no jurisdiction over the estate or the executors of a person who has left a will withholding the administration of his estate from the courts except for mismanagement or fraud, for, if the estate has been fully administered, the distribution thereof will not be allowed to depend on the will of the executors, and the district court may properly exercise jurisdiction, invoked by any part owner of the estate, to require an exhibit of the conditions thereof by the executors, and make partition of the property among those entitled to it. * * *." In the same case, reported in 89 Tex. 445, 450, 451, 35 S.W. 145, 147, the Supreme Court said: "Under the law an independent executor would continue in discharge of the duties imposed by the will only so long as the nature of the trust required. No provision is made in this instrument for the continuance of the executors in office beyond the time necessary for the administration of the estate in the ordinary mode, and when the estate was fully administered the legatees had the right to demand a distribution. * * *" And in Jerrard v. McKenzie, 61 Tex. 40, 44, it was held that the district court had jurisdiction to entertain suit by the guardian of a minor legatee against an independent executor where all debts against the estate had been paid; among other things, the court said: "But, in our opinion, the district court, by virtue of its general powers, can, in a proper case, call the independent executor to account, and can compel him to surrender to the duly appointed guardian, property or funds of the ward which may be in his possession. * * *"

In the instant case, the only duty devolved upon the independent executor was to pay debts, as he was given no special power in regard to the management, control, or disposition of the properties belonging to the estate. It follows, we think, that as the court had jurisdiction of the main action by owners against the independent executor, as an incident thereto, the court was authorized on the showing made to appoint the receiver. Ample authorities on this point are cited in the original opinion.

However, appellant insists that the record discloses that Mamie Grubbs was indebted at the time of her death, and that many debts against the estate exist at this time. No particulars are given except with reference to a $100 attorney's fee alleged to have been allowed to a Mr. Field for prosecuting a claim against the Mamie Grubbs estate. This matter originated long after the death of Mrs. Grubbs, and is in no sense a claim against her estate. It seems that prior to her death Mrs. Grubbs placed an installment note with Mr. George W. Works, attorney, for collection; he held the note at the time of her death, and continued to make collections thereon even after the death of the beneficiary, Josie Birr. After Mrs. Naumann came into the ownership of the property she requested Works to turn the note over to her, which it seems was not done; but, after her death, the ownership of the property having passed to others, Works filed an interpleader making the owners of the property and Mr. Cocke, Independent Executor, parties; deposited in court the note and the sum of $46.75 collected thereon, and prayed that the court determine to whom same should be delivered, that he be protected and allowed a reasonable attorney's fee, etc. This case was consolidated with the main case and has not yet been finally disposed of.

The litigation between appellant and the owners of the Mamie Grubbs estate has proceeded from the beginning on the idea that no debts existed against the estate justifying an administration; the probate court so held when the will was admitted to probate, as revealed in Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954, 955, 958. Later, in November 1944, appellant, as independent executor, filed an inventory in court showing the real and personal property belonging to the estate; also gave a list of claims against the estate aggregating $2,682.91, the largest item designated as "attorney's fees $2,000.00"; the other claims mentioned, consisting of funeral expenses, doctor's bills, insurance premiums, and other small items, were paid by the legatee soon after the death of Mrs. Grubbs, except the record is silent as to payment of three small claims aggregating only $18.94.

It was stated in written argument, and not denied, that the attorney employed to have the will probated was paid a fee of $100 by the legatee; so it would seem that the $2,000 attorney's fee listed by appellant was incurred by him in an effort to retain control and management of the estate. The estate unquestionably is solvent; the inventory filed by appellant lists as assets, cash in bank $697.32, and it was shown that the property yielded about $185 per month rent, which doubtless accounts for the item of "accumulated rents $4,160" listed by appellant as an asset of the estate, all of which conclusively shows that from the beginning the estate possessed liquid assets available for payment, on a day's notice, and that all claims listed by appellant have been paid except a claim of $2,000 attorney's fee, which is contested, and the right of appellant to make it a charge against the estate will be adjudicated on final trial of the cause.

Appellant insists, however, that the payment of debts did not constitute his whole duty; that he was likewise authorized to handle the estate, collect same, and look after it in every respect deemed necessary by him (see motion for rehearing, p. 4). We do not think so. In the will Mamie Grubbs directed that her debts be paid; gave all her property to her sister, Josie Birr, with full power of possession, control and disposition. Appellant was simply named independent executor, was not charged with any special duties, had no power or authority except such as is inherent in the position of independent executor, and, as there existed no reason for an administration, he had no duties to perform. In the case of Lanius v. Fletcher, 100 Tex. 550, 101 S.W. 1076, 1078, Judge Brown, speaking for the Supreme Court, among other things, said: "In that case there were no duties for the trustee to perform. He was simply the depositary of the legal title, and this court held that under such conditions, upon application by the beneficiary, the court would close the trust. There was no unaccomplished object of the grantor to be defeated by such judgment. When a trustee has no duties to perform, the purposes of the trust having been accomplished, it becomes a simple, passive, or dry trust, as it is termed in law, and the cestui que trust is entitled to have the full legal title and control of the property, because no other person has an interest in the property." And it is stated in 34 C.J.S. Executors and Administrators, § 820, that: "The personal representative does not represent the estate where he resists an attack on his settlement, and hence costs are properly taxed against him personally; and the same is true of a representative who resists a suit by a beneficiary for the termination of his trust."

After a careful consideration, appellant's motion for rehearing is overruled.