Smithwick v. Kelly

STAYTON, Chief Justice. This action, in form trespass to try title, was brought by appellants, who are the sole heirs of Jeremiah Galvan, •deceased. That the land belonged to Galvan at the time of his death, which occurred in June, 1879, is conceded. He died testate, and his will was as follows: “In view of a contemplated sea voyage, the uncertainty of life, and the complications which may arise in case of my sudden decease in the settlement of my estate, I do give, devise, and grant unto Thomas Carson, of Brownsville, State of Texas, and G. Follain, of Matamoros, Mexico, all of my property, both personal and real, that I may be seized of at my death, in the State of Texas, Republic of Mexico, or elsewhere; in trust, nevertheless, ‘as to the whole of said property, personal and real, and all receipts, rents, and dues from same; for the uses and purposes which I may hereafter propose or provide by a further testament, then such avails of said property are to be by them accounted for and apportioned or divided among my heirs according to law; provided, however, that my executors hereinafter appointed shall pay to my esteemed friend, John Clark, of Brownsville, State of Texas, out of my estate an annuity of 8600, to be paid to him quarterly. “I do hereby appoint Thomas Carson, of Brownsville, State of Texas, .and G. Follain, of Matamoros, Republic of Mexico, to be my executors and trustees of my will, and that no bond be required from them as such executors.” The codicil gave moneyed legacies to the amount of 87750, besides providing for the annual payment to the other légatees of sums amounting each year to 82600, and monthly payments of 865 each, also to legatees. The will and codicil were probated and letters testamentary granted to Carson and Follain and they qualified as executors. The inventory showed the estate to consist of real estate to the amount of 863,600; personal property, 824,691; claims and accounts, 849,181. On March 27, 1880, the Probate Court, without notice to the executors, adjudged that it was their duty to administer the estate under the orders — 570 — and control of that court without being required to give bond, and made an order as follows: “It is therefore ordered by the court that the administration of said testator’s estate under the will as aforesaid shall in all respects (save and except in the matter of executing bond by the executors named in said will) be governed by the provisions of the law respecting the administration.of intestates’ estates; and that the executors in said will, viz., Thomas Carson and G. Follain, who have heretofore qualified as executors as aforesaid under said will, be and they are hereby ordered to refrain from administering said estate of the testator aforesaid in any other manner than according to the provisions of the law respecting the administration of intestates’ estates. Ordered that the executors named as aforesaid he cited to make a full exhibit of all their acts and doings in the administration of the estate of said testator’s estate, and that they report the said exhibit to the next term of this court.” On April 12 following, in vacation, a paper was filed in the County Court, which was as follows: “ Now comes Thomas Carson and Gr. Follain, executors of the estate of Jeremiah Galvan, deceased, and hereby give notice of appeal to the District Court of Cameron County, Texas, from the order and decree of this court made in the matter of this said estate on the 27th day of March, A. D. 1880, and entered on page 370, book E, of the minutes of this court, because this said court had no jurisdiction or right under the law to make such order and decree, and because said executors nor either of them were ever cited or in any manner notified to appear and show cause why said order and decree should not be made, or in any manner notified of the making of said order until after the same was so made; and the appeal bond of the said Carson and Follain, executors as aforesaid, in this mat-ter is now here fixed by the court in the sum of 81000; and upon filing of the bond with good and sufficient sureties, so conditioned as the law requires, the clerk of this court is hereby ordered to make out a duly certified transcript of all the papers and proceedings relating to the order and decree appealed from, together with said order and decree, and transmit the same to the clerk of the District Court for Cameron County; * * * and the clerk of this court is hereby ordered to at once enter this order upon the minutes of this court. [Signed] “James M. Hays, “County Judge.” The appeal bond was approved and filed on the same day, and on the 24th day of August, 1880, the following judgment was entered in the District Court: “And now on this 24th day of August, this appeal coming on to be heard in its regular order upon the docket, the court, after hearing the pleadings and argument of counsel and duly considering of the same, is of the opinion that the order of the said County Court of March 27, 1880, ap — 571 — pealed from herein is erroneous and without warrant of law, wherefore it is now here by the court considered, adjudged, and decreed that the same order of the County Court of the 27th day of March, A. D. 1880, be and hereby is in all things reversed, annulled, and set aside; that the said executors, Thomas Carson and G. Eollain, continue to administer the estate of the said Jeremiah Galvan, deceased, without the County Court, as they have heretofore done before the making of said order of March 27, 1880, and that this order be certified to the County Court for observance.” At the time the testator died he was indebted to Edward Downey $3609, and he having died, the executors in that capacity, on May 15,1883, executed to Mrs. Downey, sole heir of her husband, a mortgage on the property in controversy to secure the payment of that debt. This debt and mortgage were assigned to G. W. Miller, who instituted suit thereon against Carson and Eollain as independent executors of the will of Galvan, and that resulted in a judgment against the executors as “ executors of the last will and testament of Jeremiah Galvan, deceased,” for the sum due, with foreclosure of mortgage, directing the seizure and sale of the property, and further directing execution against the estate in hands of the executors in the event the mortgaged property did not sell for enough to satisfy the judgment. Process issued under that judgment on December 2, 1886, under which the property was sold and purchased-by Sutton, to whom the sheriff made a deed, and Sutton subsequently sold to the defendant Dalzell, under whom the other defendant held as tenant when this action was brought. The court below held that the will required the executors to administer the estate without control of the Probate Court; that the executors had power to make the mortgage to Mrs. Downey; and that the sale made on its foreclosure passed title to the land in controversy. The conclusion that the executors were freed from the control of the Probate Court seems to have been rested on the proposition that the will so required, and on the further proposition that the decree of the District Court on appeal was conclusive upon that question. The court further held that if title had not passed by the sale made under process issued in foreclosure of the mortgage, that appellants could not recover without refunding the purchase money. Defendant Kelly answered by a plea of not guilty, and then alleged that he held possession of the property in controversy only as the tenant of his codefendant, and it is insisted that a judgment should have been entered against him as in case of an ordinary disclaimer, although judgment was rendered in favor of his landlord. Ill this proposition we do not concur. If in such a case such a judgment should be entered we would have the anomaly of a judgment in effect declaring that the landlord's title was valid, and a further judgment under — 572 — which his tenant might be dispossessed under process issued in favor of one who was adjudged to have no title at all or right to possession. We will not attempt to follow the assignments of error in the order presented, but will notice all questions believed to be important in the decision of this appeal. The will simply directs “ that no bond be required from them as such executors,” but it contains no expression of a desire that they should administer the estate, in so far as it might be necessary for them to do so as executors, freed from the control of the Probate Court. The statute provides that “ when any testator shall direct in his will that no security shall be required of the person named therein as executor, letters testamentary shall be issued to such person without any bond being required,” etc. (Revised Statutes, article 1893), but, as has been correctly held, such a provision in a will does not withdraw the estate from the control of the Probate Court. Lewis v. Nichols, 38 Texas, 54. The statute which permits a testator to withdraw his estate from the control of the Probate Court is as follows:. “Any person capable of making a will may so provide in his will that no other action shall be had in the County Court in relation to the settlement of his estate than the probating and recording of the will and the return of an inventory, appraisement, and list of claims of his estate.” Rev. Stats., art. 1942. There is nothing in the will in question indicating an intention that the Probate Court should not have control of the administration of the estate, and such intention can not be inferred from the fact that he relieved the executors from necessity to give bond, when under the law this may be done although the estate in all other respects must be administered under the control of the Probate Court. The order requiring the executors to administer the estate as the law required was entered on March 27, 1880, and no steps were taken to perfect an appeal until April 12, when proceedings were had on which it is claimed an appeal was perfected. Without entering into an inquiry whether the ex parte order of the Probate Court was such as the executors could appeal from, and without considering what would be the effect of the judgment rendered by the District Court on that attempt to appeal had it acquired jurisdiction, an inquiry will be made whether the District Court acquired jurisdiction to hear the matter and enter any decree at all. District Courts “'have appellate jurisdiction and general control in probate matters over the County Court established in each county for appointing guardians, granting letters testamentary, and of. administration, for settling the accounts of executors, administrators, and guardians, and for the transaction of business appertaining to estates; and original jurisdiction and general control over executors, administrators, guardians, and — 573 — minors, under such regulations as may be prescribed by the Legislature.” Const., art. 5, sec. 8. The Legislature has provided regulations whereby the appellate jurisdiction of the District Court may be made to attach in such cases. This may be done by certiorari; but there can be no claim that this regulation was complied with by the executors in their effort to have the decree of the County Court revised. The other mode is by appeal, and the Legislature has prescribed that a person who may desire to appeal may do so by filing with the county clerk “within fifteen days after such order-, judgment, or decree shall have been rendered, a bond with two or more good and sufficient sureties, payable to the county judge, and to be approved by the clerk,” conditioned as the statute requires. Rev. Stats., art. 2201. If unable to give bond, the person desiring to appeal may do so if within the time prescribed for giving bond he file an affidavit of his inability, as prescribed by the statute. Rev. Stats., art. 2203. An executor is not required to give an appeal bond “unless such appeal personally concerns him.” Rev. Stats., art. 2202. The appeal bond must be filed within fifteen days after the decree appealed from is rendered; and excluding the day of rendition, the appeal bond was not filed until after the fifteen days had expired. In Burr v. Lewis, 6 Texas, 76, this court had affirmed a judgment on certificate, and a motion for rehearing was filed during the term, asking that the judgment of affirmance be set aside on the ground that the court had no jurisdiction of the case because the appeal bond was filed on the twenty-first day after the adjournment of the District Court for the term at which the judgment was rendered. At the succeeding term the motion for rehearing, as well as a motion to recall a mandate that had improvidently issued, was acted upon. It was held that as the appeal bond was not filed within twenty days this court did not acquire jurisdiction. In disposing of the case it was said: “ To constitute an appeal perfected, the appellant must give notice of appeal during the term, and within twenty days after the term he must give bond for the prosecution of the appeal. Until these two constituents of an appeal concur there is no appeal. Keitlier of itself is sufficient; and although notice be given, until the bond is also given the appeal is incomplete and ineffectual and the jurisdiction of the appellate court does not attach. * * * If the case was not legally before us at the last term when the judgment was rendered it is immaterial at what term the application was made; for if the judgment be a nullity it may be so declared upon motion at a subsequent term. * * * We are of opinion that the case was not legally before the court when the judgment of affirmance was rendered, and that judgment was consequently a nullity. It must be so declared and the mandate directed to the District Court must be revoked.” — 574 — This broad statement may be subject to qualifications or exceptions, but if so it is not necessary in this case to consider them, for they would have no application to the case before us. If the rule stated in the case here cited be correct when there is a general grant of appellate jurisdiction, the reason for enforcing it is much stronger when jurisdiction is only granted to be exercised under such regulations as the Legislature may prescribe. The record makes it clear that no notice of appeal was given during the term of the County Court, and that no appeal bond was filed within the fifteen days prescribed by the statute. The appeal bond was not executed by Carson and Follain as executors, and the inference is almost irresistible that theyintended to prosecute an appeal to protect what they supposed to be their personal interests. If, however, it be held that they attempted to prosecute an appeal as executors for the benefit of the estate the same result would follow. Ho notice of appeal having been given in open court, the executors could not perfect an appeal on behalf of the estate or themselves. In appellate proceedings notice to persons adversely interested is as necessary as in proceedings original in character; and notice in such cases when not otherwise directed to be made must be given in open court and this made to appear in the record of the proceedings in the case, for when a final judgment is entered and a term closed neither the case nor parties are before the court, and it would be manifestly unjust to permit one party to prosecute appellate proceedings without notice to the party adversely interested. The necessity for this in probate proceedings is made more apparent by the proposition of appellees in this case, who say that all parties interested in an estate are presumed to be present when proceedings are transacted affecting it, unless in cases in which the law requires them to be cited, and they claim that for this reason parties interested in the estate were before the Probate Court when it entered the ex parte order. If that be conceded, without notice of appeal given in open court, they seem authorized to believe that the decree there rendered was final, unless someone entitled to do so sought to have it revived on certiorari, in which event it would have been necessary for the party seeking such revision to have filed an application stating the names and residences of the persons adversely interested, and it would have been necessary to cite the persons thus shown to be adversely interested. Rev. Stats., arts. 291, 296. If an application had stated that the county judge alone was the person adversely interested, it would have been fatally defective, for in such a matter that officer would not be a party adversely interested within the meaning of the law, but creditors, legatees, devisees, and heirs would be. There are instances no doubt in which executors or administrators would be deemed the representatives of persons interested adversely to one seeking a revision of a decree in probate, but this could not be true when exe — 575 — cutors were seeking to set aside a decree in probate which simply required them to administer an estate in accordance with the will under which they are acting and with the law. In appeals from Justice Courts it is necessary that notice of the appeal should be given to the adverse party, and the statute prescribes how this shall be given. Rev. Stats., art. 1639. We have referred to the necessary procedure when revision is sought through certiorari to illustrate the fact that notice of appeal is in all cases necessary before an appellate court can acquire jurisdiction, unless notice is in some manner waived. Now, as heretofore, the statutes regulating appeals in probate proceedings do not in terms require notice of appeal to be given in open court, but the statutes in force now in no respect affecting the question before us differ from the Act of March 20,1848 (Paschal’s Digest, articles 1383, 1384), under which, in Battle v. Howard, 13 Texas, 348, it was said: “ Such a provision is not necessary to the right of appeal. On general principles he who would" appeal from the judgment of any court must do so in open court at the time when the judgment is procured, and the fact should appear in the proceedings of the case. This is all the notice which, in practice, the law has been held to require in any case. In the present case the administrator appealed from the judgment of the Probate Court and the fact was entered of record, and we are of opinion that nothing further was necessary to give the District Court'jurisdiction.” It ought to be presumed that in carrying the Act of March 20, 1848, above cited, into the Revised Statutes it was intended it should receive the construction theretofore placed upon it. In the case cited we understand the court to have meant by “the time when the judgment was procured” the term at which the judgment was rendered. That notice should be thus given we have no doubt in the absence of a law requiring notice to be given in some other manner1. In Glenn v. Kimbrough, 70 Texas, 148, there is a statement that notice of appeal from a decree in probate was not necessary; but in that case a bond was filed within the time prescribed by law, and it may be that it was intended in such cases that parties adversely interested should take notice of that fact and thus have notice of an appeal; but if so, that could not affect this case, for the bond in question was not filed within fifteen days after the decree in probate was rendered, and it can not be held that appellants or others interested in the estate of the testator were bound to take notice of the filing of a bond after the time had elapsed within which the law permitted a bond to be filed. We are, however, of opinion that the rule asserted in Battle v. Howard is the correct one, and persons who may not be able thus to give notice of appeal may have a judgment in probate revised in the District Court on certiorari upon proper application and notice. — 576 — The views expressed lead to the conclusion that the District Court for Cameron County had not jurisdiction to revise or set aside the decree of the Probate Court. That the executors, under the terms of the will, had no power to mortgage the property of the estate is clear. To recognize such a power would practically annul the statutes which determine the classification of claims. The will gave no such power. It is equally clear that the sale of the property in controversy under the judgment of the District Court foreclosing the mortgage did not pass title. The jurisdiction of the Probate Court in reference to the sale of the property belonging to estates in course of administration is exclusive, and when it becomes necessary to establish a claim by suit in a District Court, whether the claim be secured by mortgage or not, all that such a court can do is to establish the claim, which must be certified to the Probate Court for settlement. The statute provides that “no execution shall be issued on a judgment obtained in any such suit, but a certified copy of such judgment shall be filed with the clerk of the County Court where the estate is pending within twenty days after the rendition of such judgment, and entered upon the claim docket, and shall be classified by the county judge, and have the force and effect as if the amount thereof had been allowed by the executor or administrator and approved by the county judge.” Rev. Stats., art. 2029. Any process issuing from a District Court under which property may be sold is within the meaning of the law an execution. It clearly appears that Carson and Follain qualified as executors, and that they were acting in that capacity when the mortgage was given, foreclosed, and sale made under it; and it must be held that what they did was done in that capacity and not as trustees. They were doubtless appointed executors in order that they might conduct the ordinary administration of the estate, the necessity for which is shown; and until that was closed it is not to be presumed that they intended to assume the right to act or that they had authority to control the estate as trustees. It therefore becomes unnecessary to inquire what powers as trustees they might lawfully exercise under the terms of the will in order to carry out the wishes of the testator. If the money bid for the land on sale made on foreclosure was actually paid and a valid debt of the estate thus satisfied, appellants can not be permitted to recover the land without refunding the money, although the sale was null. Ho question as to the right of appellee to have such moneyas may have been so paid was made by pleadings or the evidence, and as the judgment will be reversed and the cause remanded on account of matters before referred to, such pleadings may hereafter be filed and such an issue tried as — 577 — will enable the court below to adjust any equities that may exist between the parties. Delivered February 10, 1891. We are of opinion that sufficient facts are shown to entitle appellants to prosecute this action. The judgment will be reversed and the cause remanded. Reversed and remanded.