Halsell v. Neal (23 Tex. Civ. App. 26, 1900)

PLEASANTS, Associate Justice.

This suit was brought by appellee,- Mary 0. Neal, 'joined pro forma by her husband, J. H. Neal, against W. J. Halsell, executor of the will of William Huff hiñes, deceased, and G-. K. Stratton, J. M. Stratton, and J ames F. Rowland, sureties upon said executor’s bond, to recover a one-eighth interest in the estate of the said Huffhines. The only defense made to the suit was by plea setting up that by agreement of all the heirs of said Huffhines, the administration of his estate in the Connty Court was closed, and the executor released, and the entire estate turned over by him to Gr. K. and J. M. Stratton for distribution among said heirs. The plaintiff Mrs. Heal admitted that she had signed a waiver of service of citation on the final account of the executor, and agreed that same be approved, but denied that she ever authorized said executor to deliver said estate to G. K. and J. M. Stratton. This was the only issue raised by the evidence. Upon this issue a verdict was returned in favor of plaintiffs, and in accordance therewith judgment was rendered in their favor against the executor and his said bondsmen for the amount of the value of Mrs. Heal’s interest in said estate as. shown by the judgment of the County Court approving the final account of the executor, with 10 per cent damages thereon per month from the date on which Mrs. Heal made demand upon said executor for same, amounting to the sum of $1382.37. It was further adjudged that Halsell and Rowland each have judgment over against the said G. K. and J. M. Stratton for any portion of said $1382.37 that might be paid by him, together with his costs in this behalf.. The evidence establishes the following facts:

Plaintiff Mrs. Heal is a daughter, heir and devisee of the said William Huffhines, deceased^ and under the will of said Huffhines was entitled to one-eighth of his estate in the hands of the executor of said estate at the time administration of same was closed by order of the County Court of Dallas County. The defendant Halsell was the duly appointed and qualified executor of said estate, and the defendants G. K. and J. M. Stratton and James F. Rowland are the sureties upon his bond as such executor. The will of said Huffhines was executed on August 5, 1890, and probated on March 25, 1891, and shortly thereafter Halsell qualified as executor and executed his bond in the sum of $13,000, with said G. K. and J. M. Stratton and James F. Rowland as sureties. At the April term of the County Court of Dallas County Halsell filed his final account as executor of said estate, together with a written waiver of citation signed by all of the heirs of said Huffhines, agreeing that said account be approved. The account set out the amount of money and notes remaining in the hands of the executor after payment of all claims due by the estate and all expenses of said administration, and named the eight children of said Huffhines, including plaintiff Mrs. Heal, as the persons who were entitled to receive the same. On April 16, 1892, the County Court made and entered the following order:

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