Sing v. Somer

YOUNG, Justice. The matters on which this appeal is based originated in the Probate Court of Dallas County, and in the estate of Tom Fojtik, deceased, Mrs. Albena Sing, a daughter, being administratrix. The only salablé assets of the estate appear to be a house and lot, consisting of community property— the homesteád of deceased and wife prior to his death — on which the claimant, Max Somer, held a first lien deed of trust note, aggregating $913.73. Somer’s sworn proof of claim was regularly approved by the ad-ministratrix and the County Judge; the property later being sold under regular procedure and the proceeds, $970, paid over to Mrs. Sing, Administratrix, subject to further orders of the court. The claim of the administratrix for funeral expense was also approved, likewise a secured claim for paving against the premises, not here involved. In due time, appellee applied to the court for an order requiring the payment of his whole claim ($913.73) prior to the payment of all other claims; the administratrix also in appropriate pleadings asked the court for directions as to priority of claims in and to the fund of $970 (constituting all monies on hand for distribution), praying, however, for judgment giving preference to court costs, funeral expense and cost ■ of administration; the balance or remainder to go to the payment of the secured claims. Upon hearing, the Probate Court ordered ap-pellee’s debt as allowed to be paid in full, subordinating all other claims thereto. On appeal to the district court, judgment was rendered to the same effect, and a review to this Court has been prosecuted. The sole question at issue, therefore, is, whether appellee’s claim, based on his first lien deed of trust note, should be paid by the administratrix of this estate prior to payment of court costs, funeral and administration expense. Appellee contends (a) that Sub. (b), § 1, of Art. 3515a, Vernon’s Ann.Civ.St., has been sufficiently complied with to secure priority as a first lien deed of trust indebtedness; or (b) the fund represented proceeds from a sale of the homestead, which could be used only toward the satisfaction of secured claims such as appellee’s; and (c) his demand being in the nature of a claim for purchase money, has precedence over all other claims. Appellee admits, of course, that under Article 3531, R.S., Vernon’s Ann.Civ.St. art. 3531, his secured claim is of the third class and, by the terms of the statute, inferior to funeral and administration expense. He insists, however, that he has substantially complied with the affidavit requirements of Sub. (b), § 1, Art. 3515a, wherein a claimant may obtain full benefit of his security by specifying a desire to have such claim fixed as a preferred debt and lien against the particular property involved, and not against the estate; and that the status of his claim was so fixed and classified by the County Court. After thorough consideration of the record and briefs, we have concluded that all of appellant’s assignments and propositions, must be sustained and this cause reversed and rendered for appellant, establishing the priority of her demands, over the claim of appellee. In the first place, the recitals, of Mr. Somer’s affidavit were for allowance of a claim against the estate (italics ours) of Tom Fojtik, praying that same be approved as a matured claim against said estate; the court’s order 'thereon approved it as a third class claim against the' estate of said decedent. It follows that ap-pellee did not avail himself of the provisions of Sub. (b), § 1, Art. 3515a, under which his debt might become a preferred claim against the specific property securing same, payable according to the terms, of his deed of trust. Wyatt et al. v. Morse et al., 129 Tex. 199, 102 S.W.2d 396; Dal *503 las Joint-Stock Land Bank in Dallas v. Maxey et al., Tex.Civ.App., 112 S.W.2d 305. . But appellee says that the following form of notation appearing on the outside cover of said affidavit and proof of claim was also a part of the court order fixing the preference contemplated by the above statute: “Examined and approved for $913.73 as a 3rd-Sub-B Class Claim this 28th day of Mar. 1936. Robert Ogden, Judge”. The record before us does not show the action taken by the County Court on the claim docket relative to the Somer secured item. Article 3519. Bowles v. Bell et al., Tex.Com.App., 270 S.W. 1013. Consequently, in event of a conflict between the above notation and the order in the Minutes classifying the particular claim generally as one of the third class, (not appealed from) we think it is the latter record entry which determines appel-lee’s rights. Article 3302, R.S. Hamilton v. Empire Gas & Fuel Co., Tex.Com.App. (Sup.Ct. adopted) 110 S.W.2d 561. Appellee further urges that there was a homestead feature involved, precluding a sale for administration claims other than certain secured debts. Admittedly, there were secured claims against this estate. A claimant under one of them (appellee) made application for a sale of the house and premises under lien, thereby giving the Probate Court jurisdiction to order a sale thereof. Denton et al. v. Meador, Tex.Civ.App., 268 S.W. 762. The court once obtaining jurisdiction of the subject matter, would continue its exercise for the purpose of determining all matters properly involved, including a distribution of the proceeds of sale in accordance with law. 11 Tex.Jur. p. 725, Sec. 18; Kenedy v. Jarvis, Tex., 1 S.W. 191; Supreme Forest Woodmen Circle v. City of Belton, Tex.Civ.App., 66 S.W.2d 439. However, appellee is in no position to raise this question. The homestead feature can -only be asserted by one having the right of succession thereto. Ringle et al. v. Waggoner et al., Tex.Civ.App., 238 S.W. 236; Benson et al. v. Mangum, Tex.Civ.App., 117 S.W.2d 169. Appellee had no such interest and in the absence of anyone having the right, the property involved stands subject to debts and claims as ordinary property. Palm et al. v. Chernowsky, 28 Tex.Civ.App. 405, 67 S.W. 165; Batts v. Middlesex Banking Co. et al., 26 Tex.Civ.App. 515, 63 S.W. 1046. Appellee’s last counter proposition that Tiis secured claim and debt is for purchase money is not supported by the facts of this record. , His lien (deed of trust) was one of contract, not having the elements of vendor’s lien or retention of superior title. Toullerton v. Mahncke, 11 Tex.Civ.App. 148, 32 S.W. 238. Accordingly, this cause must be reversed and rendered, establishing priority of the claims asserted by the administratrix, Mrs. Sing; being funeral expense, costs of court and administration. The district court is directed to certify the judgment of this court to the county court for observance. Reversed and rendered with instructions. LOONEY, J., dissents.