King v. King (230 S.W.2d 335, 1950)

PITTS, Chief Justice.

This is an appeal from an order appointing a temporary administrator of an estate over which an independent executor already had full power and authority. Few, if any, of the facts are disputed. Most of them are stated by stipulation which reveals that on January 19, 1948, an order was entered by the probate judge in cause number 1982 of the probate court of Wilbarger County admitting to probate the last will and testament of Jessie King, deceased, and appointing her son, appellant in this action, C. V. (Carl) King, independent executor of her estate in accordance with the terms of the will of the deceased; that thereafter Carl King, the principal beneficiary under the will, took the oath as such independent executor after which he caused to be filed an inventory and appraisement of the estate; that the judgment admitting the will to probate and appointing Carl King independent executor became final without an appeal therefrom and no proceedings had been filed in cause number 1982 endeavoring to remove Carl King as independent executor; that thereafter on April 13, 1949, a new and independent cause bearing number 2071 was filed in the probate court of Wilbarger Comity seeking to set aside the will of Jessie King, deceased, and the order admitting it to probate; that subsequent thereto on July 6, 1949, an order was entered -by the probate court in the said cause number 2071 denying the relief sought in the said cause from which order an appeal was perfected to the district court where it bears number 9365 and is still pending; that thereafter on September 27, 1949, appellees, Earl J. King, Mrs. Hettie Pitts, Miss Minnie King and R. D. King, who were likewise children of Jessie King, deceased, filed an application for the appointment of a temporary administrator of the estate of Jessie King, deceased, in cause number 2071 of the probate court of Wilbarger County; that on the same day at an ex parte hearing on the said application, without the issuance or service of citation or process on appellant, Carl King, independent executor of the estate in question, or any other person, and in the absence of appellant, Carl King, the probate court entered an order in cause number 2701 appointing Tom G. Davis temporary administrator of the estate of Jessie King, deceased, from which order Carl King perfected his appeal in due time to the district court where the cause bears number 9411. A hearing was held in the district court in the said cause that resulted in the entry of a judgment substantially the same as that entered in the probate court, from which judgment an appeal has been perfected by Carl King to this court.

The record reveals that Tom G. Davis took the oath as temporary administrator and executed the required bond immediately after his appointment was made by the probate court. Thereafter appellant made his first appearance in this action in the district court where he challenged the jurisdiction of both the probate and district courts to appoint a temporary administrator of the estate in question for reasons hereinafter set out. On October 24, 1949, at a hearing had in the district court appellant’s pleas in abatement and exceptions were overruled by the district court and Tom G. Davis, a citizen and resident of Wilbarger County, was appointed temporary administrator of the estate in question with his bond fixed at $20,000, which bond had already been executed. Appraisers were likewise appointed as was previously done in the probate court in this action. As such temporary administrator Tom G. Davis was directed by the district court to take possession of the estate in question, control and manage it. Appellant superseded the judgment of the district court with a bond in the sum of $20,000 fixed by the said court and he is still therefore in possession of the estate, managing and controlling it subject to a final judgment in this action.

The stipulation made between the parties reflects a full copy of the will of the deceased. It bequeaths to each of the ap-pellees the sum of $500 and bequeaths to ’Carl King the remainder of the estate and names him as independent executor of the estate. The inventory and appraisement returned in cause number 1982 of the probate court wherein the will was admitted to probate reveals that the estate consisted of land of the approximate value of $14,-000; notes, securities, bonds, cash on deposit, livestock and other personal property of the approximate value of $126,000. •

Appellant predicates his appeal upon twelve points of error in which he assails the judgment of the district court as well as the probate court. Appellant charges, in effect, that the judgments of both the probate court and the district court attempting to appoint Tom G. Davis temporary administrator of the estate in question are void ab initio and are without authority for such action because appellant was already legally administering 'the said estate with full powers as independent executor and there cannot be two legal administrations of an estate pending at the same time. In resisting such charges appellees contend that the probate court had jurisdiction to appoint a temporary administrator to take charge of the estate in question and thus “suspend the custody and control of the estate from the appellant” during the pen-dency of their suit to set aside the order of the probate court admitting the will to probate.

Under the facts stipulated appellant had been appointed independent executor with full powers to have full control of the estate. He was so named by the testatrix and so appointed by order of the probate court in accordance with the terms of the will. There was no appeal from the order making such appointment and it soon became final. As the principal beneficiary under the will appellant qualified as independent executor, took charge of the estate, had control of it with full power to manage it for some fifteen months before appellees filed in the probate court a new and independent suit to set aside the order admitting the will to probate. Some three months thereafter appellees were denied the relief sought in the probate court but they perfected their appeal immediately to the district court. Their appeal was still pending when appellees sought the appointment of a temporary administrator without charging mismanagement of the estate by appellant further than to allege in an unverified pleading that he would' “probably dissipate” the estate in question after he had then already been administering the estate as the principal beneficiary under the terms of the will for some twenty months.

In support of his contention appellant cites the case of Yeager v. Bradley, Tex.Civ.App., 246 S.W. 688, writ of error refused in a memorandum opinion by the Supreme Court reported in 114 Tex. 581, 278 S.W. 1115. In that case John Bradley, deceased, left a will naming his sister, Mrs. Addie Coleman, trustee of his estate and guardian of his minor children. Mrs. Coleman qualified as trustee of the estate under the terms of the will and was administering the estate with full power when appellant, J. E. Yeager, was appointed administrator of the said estate by the probate court. Thereafter appellee, Mrs. A. B. Bradley, the surviving wife of John Bradley, deceased, filed her motion in the probate court to vacate, set aside and annul the order appointing appellant, J. E. Yeager, administrator of the estate of John Bradley, deceased, on the grounds that such estate was already being legally administered by Mrs. Addie Coleman, trustee. The relief she sought was granted and appellant, Yeager, ■appealed to the district court where a hearing was had with the same result from which appellant, Yeager, perfected his appeal to the Court of Civil Appeals. The appellate court sustained, as did the district court, the action of the probate court in vacating, setting aside and holding null and void its former order appointing Yeager administrator and affirmed the judgment of the district court in so holding. The Court of Civil Appeals there held: “ * * * that the county court had no jurisdiction to appoint appellant administrator of the estate of John Bradley, for the reason that there was a legal administration of said estate pending at that time, in that the appointment of Mrs. Coleman as trustee of said estate, with full power to manage, control, and dispose of the same, in effect created her independent executrix of the will of said Bradley.” [246 S.W. 689.] The said court further held that:

“A county court has no authority to appoint an administrator, except upon a petition showing the necessity therefor. There cannot be two legal administrations of an estate pending at the same time. In order to give the county court jurisdiction to appoint appellant administrator of the estate of John Bradley, deceased, it must have been shown, among other things, that there was no administration pending; otherwise the necessity for such administration could not have been shown.

“As the record herein shows that Mrs. Coleman was the duly appointed, qualified, and acting trustee of the estate of John Bradley, deceased, and as we hold that she was thereby made independent executrix of said estate, the county court had no jurisdiction to appoint appellant administrator of said estate; such appointment was void ab initio.”

In approving the opinion the Supreme Court said: “We think the judgment of the Court of Civil Appeals is correct, whether the 'orders in the administration be voidable or void.”

It may be further observed that, although the powers of an independent executor are not as restricted as those of a duly appointed administrator, the estate is still subject to the jurisdiction of the probate court and the control of an estate by an independent executor is no less an administration than it would be if such person were acting under the full control of the court. Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367, and Simkins Administration of Estates in Texas, 3d Ed., Section 128, page 171.

The .record does not reflect any creditors in the case, at bar but at any rate no creditor nor any of the heirs have instituted any action to remove appellant as independent executor or have asked that he be required to execute a bond as they had a legal right to do if they thought he would “probably dissipate” the estate. But, assuming that appellees as heirs of the testatrix are seeking indirectly to “suspend the custody and control of the estate from the appellant” upoií a plea that he would “probably dissipate” the estate, such invokes another well established rule announced in Simkins Administration of Estates in Texas, Third Edition, Section 133, page 180, which is strongly supported by the case of Hocker v. Stevens, Tex.Civ.App., 42 S.W.2d 473, writ dismissed, and numerous other authorities there cited. The rule referred to says: “An independent executor is not removable, on motion for ■mismanagement under the statute, until after the remedy provided by law for requiring the giving of a bond be first exhausted.” In applying the said rule the court held, in effect, in the Hocker-Stevens case that a testator has a lawful right to name an independent executor of his estate after he has been appointed as such by the probate court, has qualified under the law as such and taken charge of the estate, he has full power to act as such and he cannot be removed as independent executor if charged even with gross negligence in managing the estate unless the -beneficiaries or other complaining parties have proceeded to compel him to give bond as independent executor as provided for under Articles 3438-3441, Vernon’s Annotated Civil Statutes. Such executor cannot then be removed and succeeded by an administrator unless he fails to execute the' bond required as provided for in Article 3441.

No such proceedings were had in the case at bar. Appellees here rely on the provisions of Article 3378, and cite in support thereof several cases, all of which we shall now discuss. Article 3378 provides that: “Pending a contest relative to the probate- of a will, or the granting óf -letters of administration, the county judge may appoint a temporary administrator, with such limited powers as the circumstances of the case may require; and such appointment may continue in force until the termination of the contest and the appointment of an executor or administrator with full powers.” This article was passed in 1876 and has been brought forward in the re-codification of the laws with “no material difference in the wording” according to a statement made by the Supreme Court in the case of Knipp v. Kutchinsky, 138 Tex. 550, 160 S.W.2d 518, 519. Its material parts were in full force- when the rules herein previously discussed were announced. It is our opinion that the provisions of Article 3378 do not contradict the rules previously herein discussed. Article 3378 merely