Johnson v. Wilcox

Bonner, Associate Justice. There is no charge of fraud against the administrator, W. M. Wilcox, but simply that of negligent omission of duty, and that certain items for which he sought allowance were not proper credits. Counsel for R. M. Johnson, guardian of the minor, B. M. Wilcox, who contests the account of the administrator, presents in his brief only three of the errors assigned, the first, second and fourth, and in argument presented the last two only. The first alleged error, that the court erred in overruling plaintiff’s demurrer and special exceptions to defendant’s amended original answer, is considered immaterial, as it appears from the charge of the court that the guardian, on the trial below, had the privilege to introduce evidence in support of all the issues upon which he contested the account of the administrator. The second assigned error is, that “the court erred in admitting in evidence over the objection of plaintiff the document purporting to be an application made by W. M. Wilcox, administrator, to the probate court of Milam county, Texas, at [421] its August term, 1868, for partition of the estate, and a writing purporting to be a copy of an order of the probate court of said county at said term, setting apart an 861 acre tract of land, the property of the estate, to Mrs. Mary K. Wilcox, as shown by plaintiff’s hill of exceptions.” It is sought under this issue to make the administrator liable for rents and profits of a certain tract of land, which, by decree of the probate court, had been set apart to the surviving wife of his intestate, C. G. Wilcox, as her interest in the community property, under art. 1363, Paschal’s Digest. This decree was made in the regular course of administration upon the estate of C. G. Wilcox, deceased, by the probate court of Milam county, which had general jurisdiction of the subject matter. There was no appeal or other direct proceeding to vacate it; no charge of fraud against the administrator or any one else in its procurement; and the records have been destroyed. Under these circumstances, the law would indulge in all reasonable presumptions in favor of its validity. Guilford v. Love, 49 Tex., 715; Fitch v. Boyer, 51 Tex., 336. The question here presented is not so much whether the decree was sufficient to vest the absolute title to the half interest of the heirs of the deceased father to the land, in Mrs. Wilcox, or whether upon final partition she might not, if the decree was improperly made, be equitably chargeable with their half of the rents, but whether it was sufficient to protect the administrator against the claim of the heirs for rents and profits. Thus considered, we are of opinion that the decree was not such an absolute nullity, that, so long as it remained unreversed, the administrator should, at the peril of being punished for contempt and removed from office for failure to obey it, be held responsible for the rents and profits of property thereby taken from his possession. The fourth assigned error is, that “ the court erred in overruling, plaintiff’s motion for a new trial, for all the reasons as set out in the said motion.” [422] This assignment is not objected to as being too general, but issue is joined upon the only question presented under it, involving one of the material questions in the case. The proposition of the guardian under this assignment is, that “the verdict of the jury is contrary to the law and the evidence, in this: that it finds that defendant’s final account was not just and correct, and restates the same, thereby showing the plaintiff’s right to object and his success in objecting to the same, and notwithstanding, this finds the item of four hundred dollars laid by defendant to Messrs. Hamman & Adams as attorney’s fees, to defend this suit.” Under this issue the court in both the general and special charge instructed the jury substantially, that if the account of the administrator as exhibited by himself was found to be correct, then the contest was improperly made and he should be allowed attorney’s fees to defend the same; but if his account was not thus correct, but had to be restated, then he was not entitled to such fees. No question was made as to the reasonableness of the amount of attorney’s fees charged. Although special issues were not submitted to the jury, their verdict is special as to the items and amounts found for and against the administrator. They allow him as a credit the sum of $688, “as per amended final exhibit.” One item of this exhibit, as shown by the record and made by the administrator himself, is $363.80, “balance of fee due Hamman & Adams for preparing defense in this suit.” The exhibit of the administrator showed that he had previously advanced to these attorneys enough to make this fee $400. The jury having found that the administrator in his exhibit had failed, by several hundred dollars, to charge himself with the proper amount due the estate, then under the charge of the court on the issue of attorney’s fees, and which we think correctly announced the law in such cases, so much of the verdict as allowed the administrator this $363.80 was against the law and erroneous. [423] There being in the record certain data by which this part of the verdict can be separated and corrected without affecting its validity in other respects, and as the object of the verdict in such cases is to enable the court, in connection with the exhibit of the administrator, to restate, if necessary, his account, the judgment below will be here reformed, so as to deduct from the amount allowed the administrator the above sum of §400; he to be taxed with all costs in and about this appeal expended. Reversed and rendered. [Opinion delivered June 4, 1880.]