Jerrard v. McKenzie

Delany, J. Com. Apt. This suit was dismissed in the court below because, in the opinion of the presiding judge, the district court had no jurisdiction. He thought that the proceeding should have been instituted in the probate court, and he indicates the plaintiff’s remedy by pointing to articles 1944 and 1945 of the Revised Statutes. A brief history of these statutory provisions will enable us to give our views upon the subject. [43] Section 110 of the probate law of 1848 permitted a testator to appoint an independent executor. Hart. Dig., art. 1219. See, also, 1 Pasch. Dig., p. 335. When the appointment was made, a creditor of the estate, by an application to the probate court, could call in the heirs, devisees, etc., in order that they might give bond for the payment of the debts of the estate. If they did not give the bond, the estate was administered, like any other estate, under the orders of the court. But if they complied with the order, the creditor had his remedy upon the bond, or he might proceed against those in possession of the estate. Under that statute, it was held that a creditor could not proceed at once and directly against the executor by suit in the district court; but that he must literally follow the statute and summon the heirs into the probate court, in order that they might, if they chose, execute the required bond. Hogue v. Sims, 9 Tex., 546, and many later cases. It will be noticed that no provision was made for the heir, as against the executor. But by the amendment of 1862, made not a great while after the decision in Hogue v. Sims, some very important changes were introduced into this one hundred and tenth section. Pasch. Dig., art. 1371. By the new law the creditor, without calling upon the heirs, could proceed to judgment against the executor in the district court; and execution would run against the estate in his hands. An important charge was also made in favor of the heirs, devisees, etc. No method was indeed provided by which they could call the executor to an account; but if they apprehended that he was Avasting or mismanaging the estate, they might summon him before the probate court, and he might there be compelled to give a good and sufficient bond, or he might be removed if he failed to do so. This was the extent of the remedy in favor of the heir, the devisee, or the legatee. The Devised Statutes, in the two articles above quoted, contain the same provision; and this is the remedy to which the presiding judge referred when he dismissed the present suit. Now, if the petition had alleged nothing more than that the executor was mismanaging the property of the plaintiff’s wards — if the purpose of the suit had been nothing more than to protect their interests against improper conduct on the part of the executor,— the judgment would, no doubt, be correct. The remedy would be in the probate court, and it would be complete. But in addition to his other allegations, the plaintiff sets forth [44] that he is the duly appointed guardian of the persons and estates of the minors; that he has qualified as such; that the debts of the estate have long since been paid, and that the executor has, for many years, been using the property and money of the wards for his own benefit. As guardian of the estates of his wards it is his. duty to take possession of their property, and keep it for them. His appointment was made for that special purpose. The fact that the property is in the hands of the independent executor does not alter the case. If he fails to take possession of and keep the property, he and his sureties will be held responsible. „ E. S., 2544-46. If he cannot get possession otherwise, he must bring suit for the property. He has done so in this case, and has been dismissed, upon the supposition that he should have gone into the probate court. Suppose he had gone into that court and had summoned the executor. The only question which can be made there is whether the executor is wasting or mismanaging or misapplying the property. If the charge is not sustained, the proceeding is dismissed. If it is sustained, the executor will be required to file a bond, and will be removed if he fails to do so. This is all that can be done in that court. But this is not the relief to which the plaintiff is entitled. It is no part of his duty to see that some one else shall give security and take charge of the property. He must take charge of it himself, and this the probate court cannot enable him to do. For as soon as the executor'tenders a good and sufficient bond, the power of that court over him is at an end. The statute does, indeed, under some circumstances, give to the independent executor the right to file his final account in the probate court, and ask a partition of the estate. E. S., art. 1948. This right seems to be given for the benefit of the executor, and if he choose to exercise it, the court will then have power to make the partition. But suppose he does not choose to exercise this right — and such a supposition is not at all improbable,— it is extremely doubtful, to say the least, whether the probate court could compel him to do so against his will. 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. The will under which the executor is acting is not in the record, and, of course, we express no opinion concerning it. We have confined ourselves solely to the question of jurisdiction, [45] because the presiding juclge rested his action solely upon that ground. Whatever other questions may arise we leave to be determined in the future progress of the cause. The judgment should be reversed and the cause remanded. Reversed and remanded. [Opinion adopted February 4, 1884.]