Carroll v. Fidelity & Deposit Co. of Maryland

LESLIE, Chief Justice. Clayton Carroll, administrator of the estate of his parents, S. P. Carroll and wife, Annie Carroll, filed this suit against the Fidelity & Deposit Company of Maryland and Frank Terry, sheriff of Fisher county, Tex., to enjoin defendants from selling under execution the undivided interest of Liss B. Carroll in the estate of his deceased parents. The defendants answered by general demurrer and general denial, and specially pleaded that the Fidelity & Deposit Company held against [772] said Liss B. Carroll an unsatisfied judgment on which the execution issued, etc. A temporary restraining order was at first granted, and later a trial on the merits resulted in a judgment dissolving said order and refusing to grant a permanent injunction. The administrator appeals. The material facts out of which the suit arises are as follows: October 10, 1933, the Fidelity & 'Deposit Company of Maryland recovered a personal judgment in the district court-of Fisher county against Liss B. Carroll for $1,700, interest, costs, etc. November 6, 1933, execution was issued and returned nulla bona. November 16th following judgment was abstracted in Fisher county, and the judgment is still unpaid. S. P. Carroll and Annie Carroll, the father and mother of Liss É. Carroll, were drowned April 4, 1934. They died intestate, and, according to the record, at the same time. They left an estate consisting of several tracts of land, one of which contains -3,360 acres situated in Fisher county, Tex. They owed debts against each tract, except one in Louisiana. The debts of the estate are estimated to be about $36,000. S. P. Carroll and wife left several heirs besides Liss B. Carroll and the administrator. In December, 1935, the Fidelity & Deposit Company had an execution issued upon said judgment and placed in the hands of the defendant Frank Terry, sheriff of Fisher county, who levied same on the undivided interest of Liss B. Carroll in the 3,360 acres of land. The instant suit followed. The appellant contends, by several assignments of error, that the probate court of Kimble county, where the administration is pending, has exclusive jurisdiction of the estate, with right to administer the same, and that the sale of Liss B. Carroll's interest therein under execution will interfere with said administration and should therefore be enjoined. We are of the opinion that the judgment of the trial court should be sustained. On the death of an intestate owner, the title to his real property vests instantly in his heirs. Article 2570, R.S. 1925; 15 Tex.Jur. p. 172, §§ 26, 27. As said in the last section: “Since the heir is the successor in title of the ancestor, it follows that the estate and title are not changed by the transmission. The heir takes the exact title of the ancestor, whether that be the legal title, the equitable ownership or a mere right short of any title at all.” Such being the nature of the heir’s interest in the decedent’s estate, the law with reference to creditor’s right to have execution levied upon the same is stated in 18 C.J. p. 965, § 333, as follows: “In appropriate actions or proceedings therefor, the interest of an heir or dis-tributee in a decedent’s estate, whatever it may be, may be taken by his creditors for the payment of his debts. However, as against the estate of the decedent and the persons interested therein, the right of a creditor of an heir or distributee is limited to the interest of the heir or distributee in the estate. Hence, the right of the creditor is not only subject to the priority of the debts of the intestate, but also the share which he can reach is that which remains after the deduction of the indebtedness, if any, of the heir or distributee to the estate, and after the deduction of the value of any advancements which the heir or distributee has received.” See Garrett v. McMahan, 34 Tex. 307; Oxsheer et al. v. Nave, 90 Tex. 568, 40 S.W. 7, 37 L.R.A. 98. Under the subject of execution, in 23 C.J. p. 361, § 113, the same right or rule of law is stated thus: “The estate of an heir is an undivided interest in each and every tract of land, owned by the ancestor at the time of his death. Subject to the debts of the ancestor, it may be levied upon by execution or attachment, and sold .as the property of the heir.” We consider Hahn v. P. J. Willis & Bro. et al., 31 Tex.Civ.App. 643, 73 S.W. 1084 (writ ref.) a case in point. It is there held: “The title of the land, while it descended and vested in the heirs of Elizabeth Hahn at her death, did so subject to administration for the payment of the debts of .the deceased. Only the interest of C. Hahn and P. Hahn as heirs was levied on, and a purchaser at the sale would take the title subject to administration. He would take no better title than would a purchaser from them at private sale whose title is clearly subject to be defeated by sale by the administrator.” (Italics ours.) ‘ We perceive no reason why the rule of law applicable to the levy of execution on the interest of a devisee should not obtain in the case of an heir. The law with reference to levying execution upon [773] the interest of devisee and selling same is thus stated in Gregg v. First Nat. Bank (Tex.Com.App.) 26 S.W.(2d) 179, 181: ■ “The sale under execution of the interest devised to James A. Browne, under the will, does not dispossess the executrix nor interrupt the administration in accordance with the terms of the will. Under such circumstances, the interest of the devisee is subject to execution. Caples v. Ward, 107 Tex. 341, 179 S.W. 8S6; Schmidt v. Huff et al., 7 Tex.Civ.App. 593, 28 S.W. 1053; Franke et al. v. Lone Star Brewing Co., 17 Tex.Civ.App. 9, 42 S.W. 861; Bell et al. v. Read, 23 Tex.Civ.App. 95, 56 S.W. 584; McClellan v. Solomon, 23 Fla. 437, 2 So. 825, 11 Am.St. Rep. 384; Procter v. Newhall, 17 Mass. 81; Lessee of Douglass v. Massie, 16 Ohio, 271, 47 Am.Dec. 375; Freeman on Execution, § 183. “The executrix in this case had but two duties to perform with reference to the interest devised to James A. .Browne; first, to set apart his one-fifth equal portion, and then to make conveyance of same. The sale at execution of whatever interest Browne might receive under such partition in no way interfered with the performance of either of these duties by the executrix. The purchaser under such sale would only acquire title to whatever property might be set apart by the executrix as Browne’s interest in the estate under the terms of the will.” For the reasons assigned, and upon the authorities cited, we conclude that .the trial court committed no error in rendering the judgment appealed from. It is therefore affirmed.