Huppman v. Schmidt

Robertson, Associate Justice. To facilitate suit upon the bond, a creditor may require the community survivor to file an account in the probate court, after the lapse of one year (R. S., art. 2176), and, after the lapse of twelve months, the heir of the deceased partner may have him distribute the estate under the supervision of tbe same tribunal. (Art. 2183.) If he is not compelled to enter that forum by one of these means, he is independent of the orders, and is not subject to the control, of the county court. When his bond and inventory and appraisement have been filed and approved, the law vests him with the power to manage and control the community property, pay the community debts, and distribute the residue among those entitled to share in it (art. 2172), and dismisses him with only the admonition to keep correct accounts. (Art. 2173.) There is no express authority for his voluntary return to the county court, for any purpose. His discretion alone directs him in the exercise of his broad powers, and his fidelity is secured by the bond. His authority, in the scope contemplated by law, could not exist in subordination to a supervisory jurisdiction. He is a trustee—not an administrator. His manipulation [586] of the trust is not an administration pending in any court. (Art. 2172.) He is not the agent, or hand, or officer of any court, lío probate decree is the source of his authority, and the exercise of his discretion is under no judicial warrant or control, as in cases of ordinary administration. If the heirs of the deceased partner invoke the jurisdiction of the probate court to effect a distribution, when a survivor has fraudulently concealed or squandered their inheritance, that jurisdiction may discover, but cannot remedy, the wrong. The bond, their only source of indemnity, must be proceeded upon in the court having jurisdiction of the amount. If the allegations of the plaintiffs’ petition are true, a proceeding in the county court would be an idle ceremony. In cases in which the trust has been fairly and discreetly managed, an accounting and division would be complete redress, and this could be had in the probate court. But, even then, why should that be regarded as an exclusive jurisdiction? The survivor may settle with the heirs, without the aid of any court—but if he refuses to settle, in providing that the distributees may have partition in the county court, there is no implied denial of any other remedy. There is nothing in the act expressly confining the parties to the remedy it authorizes. The act of 1848 (Hartly, art. 1215, sec. 106) authorized the county court to partition between any joint owner and the estate in process of administration any property jointly held to be governed by the rules and regulations applicable to the ordinary partition and distribution of estates. In Ellis v. Bhone, 17 Tex. 131, this statute was held not to confer upon the county court exclusive power, nor to effect the concurrent jurisdiction of the district court to accomplish the same purpose. If the district court now has the requisite power under the constitution, its exercise is not prohibited by the article of the Bevised Statutes, which confers upon the county court the same authority. We think the jurisdiction of the district court is quite indubitable. Its general jurisdiction is given in the very language of the constitution of 1845, changing only the amount. It embraces all “ suits, complaints and pleas whatever, without regard to any distinction between law .and equity, when the matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest.” Constitution of 1845, sec. 10, art. 4; Constitution of 1876, art. 3, sec. 8. In Sewson v. Chrisman, (9 Tex. 113), this language was held to vest in the district courts all the powers possessed by both common law and chancery courts in England, not incompatible with the organic law. In Ellis v. Rhone (supra), it was held that the district court as a court ofequity, independent of the partition statutes, had every authority and instru587 . mentality requisite to the nicest adjustment of the rights and claims of the distributees of a mixed estate. And in Ponton v. Bellows, (22 Tex. 681,) the propriety of joining the sureties in the suit against the principal was discussed and established. The amount in controversy in this suit is more than five hundred dollars—its object is within the scope of the powers of the district court. There is in the proposed ■investigation no revision or review of any ruling or order of the county court, nor in the progress, nor in the end of the cause is there any interference with the county court or with any matter pending before it. The demurrer to the jurisdiction of the district court ought not to have been sustained. The allegation that the inventory and appraisement were false and fraudulent is a proper foundation for proof that the survivor is chargeable with property not inventoried, and that what was inventoried was worth more than the value fixed by the appraisement. He must account for their interest in all the community property, whether ventoried or not, and at its real, and not necessarily its appraised, value. The inventory and appraisement are for the protection of the heirs and creditors, but if they are not full and true, they do not restrict the liability of the survivor. The judgment is reversed and the cause is remanded. Be VERSED AND BEMANDED. [Opinion delivered March 5, 1886.]