Butler v. Summers

BOND, Chief Justice. This cause originated in the County Court of Dallas County in a pending probate proceedings on the estate of J. A. Summers, deceased. The appellee, Lena B. Summers, .was the duly appointed and acting administratrix of said estate. On October 9, 1950, within twelve months after the order of the court granting letters of administration, Lena B. Summers, wife of the deceased, made application to the court for adequate widow’s allowance for her maintenance and support for one year from date of her husband’s death. On October 10, 1950 the County Court, sitting in probate, heard said application and on said date made and entered an order of allowance in the sum of $2,400, and directed the administratrix to allow same “in accordance with law.” On January 13, 1951, more than three months after the aforesaid order was made, the appellants herein (brothers and sisters of the deceased) .filed petition in said probate proceedings to set aside the above order of allowance to the widow, and, on April 9, 1951, filed amended petition substantially to the same effect, alleging therein the invalidity of the order on grounds, (1) that the allowance would necessarily have to be paid out of the proceeds of sale of the separate property of the deceased (the homestead of the deceased and his said wife, (the appellee), which theretofore had 'been ordered sold in due course ‘ of administration) ; (2) that the petitioners had no notice or knowledge of said sale, or confirmation thereof; had no notice of the application for the widow’s allowance, and no notice of the order of the court allowing same; (3) that the order making the allowance was void as being excessive and not made in conformity with law; and (4) that in no event could said allowance be paid out of the sale of the deceased’s homestead. The appellants further alleged that they were entitled to be paid by the adminis-tratrix one-half of the net consideration she received from the sale of the homestead of the deceased; the proceeds of sale of a home-trailer which the administratrix had sold for $400; the sale of chicken-brooders for $75 and, after payment of a lien thereon, the net sale of an automobile belonging to the appellant Joe Summers, and by order of the court the administra-trix be directed to pay over to. appellants the several amounts received by her as above enumerated. The appellants further alleged that at the time of the death of the said J. A. Summers, a $1,000 life insurance policy on the life of said deceased -was in full force and effect and payable to the appellant, Mary M. Butler, as beneficiary, which was collected by Lena B. Summers; and, after [229] paying all funeral expenses and burial lot therefrom in the sum of $645, the said.beneficiary (appellant herein), Mary M. Butler, being entitled to the balance pf said insurance, the administratrix be directed to' pay said balance over to said.Mary M. Butler. In conclusion, the appellants pray “that the allowance heretofore made to the said Lena B. Summers be set aside and that no part of the money received from the sale of the homestead shall be used in making payment of any allowance to the said Lena B. Summers; and, they further pray that if any allowance be made it be in an amount and be paid out of other assets of the estate other than the money received from the sale of the homestead; ■ and, they further pray that no allowance he made for more than $500; and for such other and further relief, both in law and equity, to which they may be entitled in the premises; and, for general and special relief will ever pray.” The appellee, in answer to the appellants’ petition and prayer for relief, challenged the jurisdiction of the county court, sitting in probate, to hear their petition, and the jurisdiction of the court to set aside the order of October 10, 1950, on plaintiffs’ petition filed some three months after the order of allowance was entered; and, further, the county court in the probate proceedings is without authority to consider appellants’ other grievances in reference to the title of the property claimed by them, and lack of authority of the county court to direct the administratrix to pay plaintiffs their alleged debt from assets of the estate in administration. On March 20, 1951 the county court heard appellants’ petition and entered judgment “that the motion of the petitioners praying the court to set aside the widow’s allowance heretofore granted to Lena B. Summers, and for other relief * * * denied.” To which judgment the appellants excepted and thereafter duly "perfected appeal to a District Court of Dallas County by the filing of bond. In the appeal to the District Court the appellee, individually and as administratrix, interposed motion, for summary judgment based upon appellants’ appeal record, sm pra, as raising no justiciable issue either in fact or in law by which the District Court could grant them any relief;, that the judgment of the, county court-in probate, was the exercise of statutory authority in granting the widow’s allowance, and not void for lack of notice to the appellants. Furthermore the judgment had effectively become final in the absence of appellants appealing therefrom by filing petition and bond within fifteen days from the date of entry of said judgment. To the aforesaid motion the appellants filed controverting answer to the effect that their petition in the probate court went to the merits as set out therein, to set aside the probate order for the widow’s allowance which presented issuable facts for the determination by the trier of the facts, in that the order was void because of lack of jurisdiction of the probate court over the subject matter; that the court was without jurisdiction to apply the proceeds of sale of the deceased’s homestead to payment of debts, of the estate; and that the court erred in not setting aside the property alleged as belonging to the appellants and held in administration. On hearing of appellee’s said motion for summary judgment, the District Court entered judgment sustaining the motion and dismissed the appeal and ordered same to be certified to the probate court for observance. To which the appellants excepted and have appealed to^ this Court. The facts as disclosed by appellants’ answer are undisputed, in that the probate order appealed from, making the widow’s allowance, was entered on October 10, 1950 and that appellants’ petition challenging its invalidity and to set aside the order was filed on January 13, 1951 and the bond for appeal to the District Court was not filed with the Clerk of the county court within fifteen days after the order was made. It will be observed that the order merely directed the administratrix to pay the widow’s allowance “in accordance with law.” Hence the administratrix is not authorized to. do anything in reference thereto not authorized by law. She was limited in her [230] administration of the estate by law and no presumption may be indulged that the> ad-ministratrix will do other than the law permits in the performance of her duties. The petition having been filed and the bond entered on appeal more than three months after the entry of the order, the judgment of the court became final. No notice was required to be given to heirs of the estate or parties who may be aggrieved by said judgment. Art. 3476, Vernon’s Rev.Civ.Sts., provides for widow’s care after the death of her husband, as follows: “Within twelve (12) months after the original grant of letters testamentary or of administration, the court shall, fix an allowance for the support of the widow and minor children of the deceased.” Art. 3483, id., states that “The allowance made' for the support of the widow and minor children of deceased shall be paid in preference to all other debts or charges against the estate, except expenses of the funeral and last sickness of deceased.” Art. 3698 provides that “Any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court, shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of this chapter * * And Art. 3699 provides that “He (aggrieved party) shall, within fifteen days after such decision, order, judgment or decree shall have been rendered, file with the county clerk a bond with two or more good and sufficient sureties, payable to' the county judge”. It will be observed that no provision is made for the filing of motion for a new trial; therefore the time for perfecting an appeal to the district court is reckoned from the date of the decision, order, decree, or judgment appealed from, and unless superseded by an appeal properly perfected, such decision, order, or judgment becomes final. In Story v. Story, 154 S.W.2d 881, 882, opinion by this Court, we said, pertinent here: “‘It is doubtless true that-the probate court has power to alter its judgments during the term at which they are entered and that such power may be invoked by proper application from interested parties.; but, in the absence of a statute so providing, this cannot be held to modify the fixed and certain rule of the statute prescribing the time within which appeals must be perfected.’ ” To the same effect is the case of M. Garcia Gomez & Champion v. Longoria, Tex.Civ.App., San Antonio, 142 S.W.2d 584. A summary proceedings as in the case at bar, is a proceedings initiated by motion to> show cause why judgment should not be entered, where the basis of the suit material to the issue involved is admitted, or without controversy, presents a question of law, or facts. If there is a material issue of fact, as against a summary judgment, such must be submitted to, 'and determined as in ordinary proceedings. In the case here, there is no ground alleged or proven that would justify the submission of any issue to a jury. The county court, sitting in probate, was without authority to entertain the plaintiffs’ suit. Its judgment had become final, no effective appeal taken, hence the District Court had no jurisdiction. It is therefore apparent that the judgment of the District Court dismissing the appeal should be affirmed. It is so ordered.